Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Fédération de Russie (Ratification: 1961)

Autre commentaire sur C111

Observation

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The Committee notes the observations of the Confederation of Labour of Russia (KTR) received on 31 October 2017.

Article 1 of the Convention. Definition of discrimination. Legislation. In its previous comments, the Committee had noted that Federal Law No. 162-FZ amended section 3 of the Labour Code (prohibition of discrimination on the basis of listed grounds) so as to remove the adjective “political” before the word “convictions” (beliefs), and added “membership of other social groups”, and it therefore requested the Government to clarify whether the general term “convictions” also covers “political opinion” referred to in Article 1(1)(a) of the Convention. The Committee notes that the Government is silent on this point. Further, it notes that section 3 of the Labour Code only prohibits direct discrimination whereas sections 64 and 132 prohibit direct or indirect discrimination with regard to the conclusion of labour agreements and wage fixing respectively. In this regard, the Committee recalls that the concept of indirect discrimination is imperative to identify and address discriminatory situations in which certain treatment is extended equally to everybody, but leads to discriminatory results for one particular group protected by the Convention. Such discrimination is subtle and less visible, making it even more important to ensure there is a clear framework for addressing it, and proactive measures are required to eliminate it. Further, the Committee stresses that intention to discriminate is not an element of the definition in the Convention, which covers all discrimination irrespective of the intention of the author of a discriminatory act (see 2012 General Survey on the fundamental Conventions, paragraphs 744–747). Noting that, in the absence of information on the impact of the amendments to section 3 of the Labour Code, it remains unclear if the term “conviction” covers “political opinion”, the Committee once again requests the Government to clarify whether the general term “convictions” (beliefs) also covers “political opinion” as referred to in Article 1(1)(a) of the Convention. In addition, it asks the Government to provide specific information on any measures taken to ensure protection against both direct and indirect discrimination. In the event that no information is available on relevant judicial decisions, the Committee asks the Government to consider amending the legislation to provide for an explicit prohibition of indirect discrimination and to include provisions aimed at eliminating such discrimination. Further, the Committee requests the Government once again to provide information on access to effective remedies, and to strengthen or establish mechanisms for the promotion, analysis and monitoring of equality of opportunity and treatment in employment and occupation for all the groups covered by the Convention.

Article 1(1)(a) Discrimination based on sex. Sexual harassment. The Committee recalls its previous comments in which it noted that section 133 of the Criminal Code on “compulsion to perform sexual actions” does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation, in particular the creation of a hostile working environment. Noting that, once again, the Government’s report is silent on this point, the Committee recalls that criminal law in itself is not sufficient to effectively address sexual harassment in employment and occupation. As the Committee emphasized in paragraph 792 of its 2012 General Survey on the fundamental Conventions, addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses, and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation. The Committee also considers that legislation under which the sole redress available to victims of sexual harassment is the possibility to resign, while retaining the right to compensation, does not afford sufficient protection for victims of sexual harassment, since it in fact punishes them and could dissuade victims from seeking redress. The Committee further recalls its 2002 general observation in which it stressed the importance of taking effective measures to prevent and prohibit both quid pro quo sexual harassment (any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person) and hostile work environment sexual harassment (conduct that creates an intimidating, hostile or humiliating working environment for the recipient). Therefore, recalling that sexual harassment undermines equality in employment and occupation by calling into question the integrity, dignity and well-being of workers and, in order to ensure an effective protection of workers against sexual harassment, the Committee once again requests the Government to take steps to include in the civil or labour law a clear definition and prohibition of both quid pro quo and hostile environment sexual harassment in employment and occupation. It also once again requests the Government to take active steps to prevent and address sexual harassment in employment and occupation in practice, and to raise awareness of employers, workers and their organizations of this issue. The Committee asks the Government to communicate information on the progress made in this respect.

Prohibition of discrimination in job advertising. The Committee recalls that Federal Law No. 162-FZ of 2 July 2013 amending Federal Law No. 1032-I on employment and other legislative acts, modified section 25 so as to explicitly prohibit the dissemination of advertisement of vacancies containing restrictions or establishing preferences on the basis of sex, race, colour, nationality, language, origin, property, family, social and employment status, age, place of residence, attitude to religion, convictions, membership or non-membership of voluntary associations or social groups, as well as any other factors not related to the qualifications of workers, except for cases where these restrictions or preferences are established under specific laws. The Code of Administrative Offences was also amended accordingly to introduce a definition of discrimination and to provide for fines in case of discrimination in job advertising. The Committee notes the KTR’s observations in which it alleges that despite the adoption of Federal Law No. 162-FZ of 2 July 2013, some job adverts containing discriminatory grounds of selection continue to be published, and that in practice, many employers and recruitment agencies who have stopped publishing discriminatory job adverts, still apply discriminatory criteria at the recruitment stage. Noting that the Government has not provided information nor commented on this point, the Committee requests the Government to provide its reply to the KTR’s observations. In addition, the Committee reiterates its request to the Government that it specify the legal provisions referred to in section 25 of the Law on Employment, as amended, and provide relevant administrative or judicial decisions so as to clarify the cases in which the prohibition of discrimination in recruitment does not apply, and the related grounds.

Articles 1 and 5. Discrimination based on sex. Special measures of protection. Since 2002, the Committee has been requesting the Government to revise section 253 of the Labour Code (prohibition to employ women in arduous, harmful or dangerous conditions) and Resolution No. 162 of 25 February 2000, which excludes women from being employed in 456 occupations and 38 branches of industry. It recalls that the Labour Code (sections 99, 113, 259, 298, etc.) contains specific provisions with respect to women who have children under the age of 3 years (or 1.5 years), particularly with respect to working time (overtime, night work, work in shifts, etc.). The Government indicated in 2014 that it had decided to amend Resolution No. 162 and that work was under way to introduce a general system of occupational risk management in cooperation with the social partners at each workplace. The Committee notes the KTR’s observations according to which in 2017, following the recommendation of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the Supreme Court held that the case of a woman who had been refused work as a navigation officer should be re-examined at the district level. The KTR observes, however, that the issue remains unsolved as the list of prohibited occupations and industries is still in force. The Committee notes the Government’s indication that it will consider the possibility of amending section 298 of the Labour Code, to allow women with children under the age of 3 years to work on rotating shifts, subject to their written consent. However, the Committee notes with concern that the Government repeats its previous statement that it does not consider that the other above-mentioned provisions amount to discrimination, as they merely reflect the State’s particular concern for persons in need of greater social and legal protection. Finally, the Committee notes from the 2017 concluding observations of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) that there is an ongoing discussion to review the list contained in Resolution No. 162 of 25 February 2000 (E/C.12/RUS/CO/6, 16 October 2017, paragraph 28). In this regard, the Committee recalls that a major shift over time has occurred from a purely protective approach concerning the employment of women to one based on promoting genuine equality between men and women and eliminating discriminatory law and practice. The Committee recalls that in its 2012 General Survey (paragraphs 838–840), it stresses the distinction to be drawn between special measures to protect maternity (in the strict sense), which come within the scope of Article 5 of the Convention, and measures based on stereotypical perceptions of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment. Provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Moreover, with a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access these types of employment on an equal footing with men. Consequently, the Committee urges the Government to take immediate measures to revise Resolution No. 162 and the Labour Code, in particular section 253, so as to ensure that restrictions applying to women are strictly limited to those aimed at protecting maternity, in the strict sense, and those providing special conditions for pregnant women and breastfeeding mothers, and that they do not hinder the access of women to employment and their remuneration on the basis of gender stereotypes. The Committee requests the Government to provide full information on any progress achieved in this regard, in consultation with workers’ and employers’ organizations.

Monitoring and enforcement. The Committee previously welcomed the increased efforts made by the labour inspectorate to strengthen the supervision and monitoring of compliance with the labour legislation relating to the protection of women (pregnant women, women with young children and women in rural areas) and persons with family responsibilities. However, recalling that claims for discrimination are only dealt with by the courts, and not by the labour inspectorate, it also noted the insufficient information regarding complaints for or relating to discrimination in employment and occupation submitted to the courts. It therefore requested the Government to provide information on the number and content of cases concerning discrimination.

The Committee notes the KTR’s allegations according to which the prohibition of discrimination contained in the legislation is ineffective because the labour inspectorate does not have the right to take any action against the employer and that filing a claim with the court does not lead to the effective protection and restoration of a worker’s rights. The Committee takes note of the Government’s indication that the labour inspectorate provides counsel and assistance to workers applying to the courts for discrimination issues. It also welcomes the adoption of Federal Law No. 272-FZ amending certain legislative acts of the Russian Federation in order to increase employers’ liability for breaches of the law. The Committee welcomes the Government’s indication that Federal Law No. 272-FZ amended section 29 of the Civil Procedure Code to permit citizens to institute legal proceedings for the restoration of their labour rights in the court closest to the plaintiff’s place of residence. However, the Committee notes with regret the continued lack of information provided by the Government with respect to the number and outcome of cases dealt with by the courts, making it difficult to assess whether the existing complaint mechanism is accessible in practice and allows workers to effectively assert their right to non-discrimination and equality under the Labour Code. The Committee recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed. The Committee further wishes to emphasize that the judicial process of individual complaints to courts, including providing appropriate remedies and imposing sanctions, remains a common feature in the enforcement of anti-discrimination and equal remuneration provisions. Courts have an important role in developing jurisprudence furthering the principle of the Convention, and in providing remedies including orders for compensation and reinstatement (see 2012 General Survey, paragraphs 870 and 883). The Committee therefore once again urges the Government to provide information on the number and content of cases concerning discrimination in all aspects of employment and occupation brought before the courts under the terms of the Labour Code, and on the outcome of such cases, as well as the impact of limiting the avenues for seeking redress solely to the courts. The Committee also requests the Government to take steps to strengthen or establish mechanisms to analyse and monitor equality of opportunity and treatment (or non-discrimination) for all groups covered by the Convention, and to provide information in this regard. The Government is further requested to provide information on any activity undertaken: (i) to raise awareness of the relevant non-discrimination legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination; and (ii) to promote public understanding of the relevant legislation, such as through media campaigns or training delivered to social partners.

The Committee is raising other matters in a request addressed directly to the Government.