Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Chine (Ratification: 2006)

Autre commentaire sur C111

Observation

2022
2021

Demande directe

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The Committee notes the observations made by the International Trade Union Confederation (ITUC), received on 1 September and 7 October 2022. The Committee requests the Government to provide its comments thereon.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (CAS) in June 2022 concerning the application of the Convention. The CAS deplored the use of all repressive measures against the Uyghur people, which has a discriminatory effect on their employment opportunities and treatment as a religious and ethnic minority in China, in addition to other violations of their fundamental rights. It expressed grave concern at the Government’s efforts to impose “deradicalization” responsibilities on employers’ and workers’ organizations. The Conference Committee urged the Government to, in consultation with the social partners:

–immediately cease any discriminatory practices against the Uyghur population and any other ethnic minority groups, including internment or imprisonment on ethnic and religious grounds for deradicalization purposes;
–immediately cease the racial harassment of the Uyghur people, including physical, verbal or non-verbal conduct or other conduct based on their ethnicity and religion, which undermines their dignity and creates an intimidating, hostile or humiliating working environment;
–adopt national and regional policies with a view to eliminating all distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation, particularly with regard to the Uyghur population;
–repeal provisions in the Xinjiang Uyghur Autonomous Region (Xinjiang) Regulation, and any other laws, regulations or other policies, that impose deradicalization duties on enterprises and trade unions that prevent enterprises and trade unions from playing their respective roles in promoting equality of opportunity and treatment in employment and occupation without discrimination;
–amend national and regional policies with a view to ensuring that the activities of vocational guidance, vocational training and placement services serve the purpose of assisting ethnic and religious minorities in the development and use of their capabilities for work in their own best interests and in accordance with their own aspirations;
–amend national and regional regulatory provisions with a view to reorienting the mandate of vocational training and education centres from political re-education based on administrative detention;
–bring the existing legal framework on sexual harassment in the workplace fully into line with the Convention and ensure that victims of sexual harassment have effective access to judicial mechanisms and legal remedies; and
–amend the Labour Law and Employment Promotion Law so as to bring this legislation fully into line with the Convention.

The CAS recommended that the Government accept an ILO technical advisory mission to allow the ILO to assess the situation with the support of the ITUC and the International Organisation of Employers (IOE). The CAS requested the Government to submit a report to the Committee of Experts by 1 September 2022 with information on the application of the Convention in law and practice, in consultation with the social partners.

In its concluding statement to the CAS and in its report, the Government considered the conclusions of the CAS to be groundless and biased, resolutely rejecting the accusations of repression of the Uyghurs in the conclusions as false and the existence of discrimination and harassment of the Uyghurs as unfounded.

While the Government has indicated that it will give serious consideration to some of the comments made in the CAS and welcomed technical consultations to facilitate further understanding of the actual implementation of the Convention in China, it has not confirmed its acceptance of an ILO technical advisory mission to allow the ILO to assess the situation with the support of the ITUC and the IOE. The Committee notes that the Government requested the Office to hold technical discussions on the application of the Convention before the end of 2022. In this respect, a schedule of work has been established, and the first meeting was held in November.

Articles 1(1)(a), 2 and 3 of the Convention. Definition and prohibition of discrimination in employment and occupation. Prohibited grounds of discrimination. National Equality Policy. Legislation. The Committee notes that, in its written statement to the CAS, the Government states that China’s laws, regulations and practices are fully in line with the principles of the Convention and that Xinjiang’s subnational administrative regulations, departmental rules, and normative documents are all in line with the principles of national laws and conform to the principles and requirements of the Convention. In respect of vocational training, it indicates that the Labour Law (section 3) guarantees workers equal rights to training in vocational skills, while the revised Vocational Education Law (2022) provides that citizens have the right to receive vocational education in accordance with the law (section 5); that the State practices a system whereby workers receive the necessary vocational education prior to employment or assignment (section 11); and that the State supports the development of vocational education in former revolutionary base areas, ethnic minority areas, remote areas and underdeveloped areas, guaranteeing equal rights for women (section10). In respect of other aspects of access to employment, the Government explains that China’s Regulations on Employment Services and Employment Management guarantee workers equal employment rights in accordance with the law (section 4); that recruitment announcements by employing units must avoid discriminatory language (section20); and that public employment service agencies are prohibited from releasing employment information that contains discriminatory content (section 58).

The Committee recalls that legal provisions providing for equality of opportunity and treatment, although important, have generally not proven to be sufficient to address specific cases of discrimination in employment and occupation. A more detailed legislative framework is also required. The Committee repeats its previous comments that there is a need for comprehensive legislation containing explicit provisions defining and prohibiting direct and indirect discrimination on at least all of the grounds set out in the Convention, and in all of the aspects of employment and occupation as set out in Article 1(3) of the Convention, in order to ensure the full application of the Convention.

The Committee therefore again urges the Government to include a clear and comprehensive definition of discrimination (both direct and indirect) in its labour legislation. With respect to vocational education, it asks the Government to clarify how compliance with the equal rights provisions in the Labour Law of 1994 and the revised Vocational Education Law (2022) is secured. With respect to the anti-discrimination legal provisions in force, the Committee also asks the Government to confirm that the Employment Promotion Law of 2007 prohibits discrimination based on colour, national extraction, social origin and political opinion even if such grounds are not explicitly mentioned, and to provide judicial interpretations or decisions to that effect.

Articles 1(1)(a), 3 and 4. Activities prejudicial to the security of the State. Allegations of discrimination based on race, religion, national extraction and social origin affecting ethnic and religious minorities in Xinjiang. Further to its previous comments and to the conclusions and grave concern expressed by the CAS, the Committee notes the call by the United Nation (UN) Committee on the Elimination of Racial Discrimination (CERD) on 24 November 2022 on China to immediately investigate all allegations of human rights violations in Xinjiang; to immediately release all individuals arbitrarily deprived of their liberty in Xinjiang, whether in vocational education and training centres (VETCs) or other detention facilities, and to provide relatives of those detained or disappeared with detailed information about their status and well-being. In this respect, and while being aware of its strong rejection by the Government, the Committee notes the finding of the UN High Commissioner for Human Rights in August 2022 that it is reasonable to conclude that a pattern of large-scale arbitrary detention occurred in vocational education and training facilities, at least during 2017 to 2019, affecting a significant proportion of the Uyghur and other predominantly Muslim ethnic minority community in Xinjiang (Office of the United Nations High Commissioner for Human Rights (OHCHR), Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, 31 August 2022).

The Government indicates that in response to the needs of workers of all ethnic groups, Xinjiang authorities have taken measures for the implementation of the Employment Promotion Law of the People’s Republic of China in Xinjiang. The Xinjiang 14th Five-Year Plan (2021–2025) for Employment Promotion provides a solid institutional guarantee for economic development as well as support for flexible employment and for groups facing difficulties in finding employment, so that workers can fully enjoy equal rights and opportunities in employment and occupation. Employment of all ethnic groups in Xinjiang increased by 19.5 per cent between 2014 and 2020. Women from Uyghur and other ethnic minorities formed the vast majority of newly employed women, thus realizing the transition from having low education and skills to gaining employment, improved living standards and economic autonomy.

The Government further reports that deradicalization measures by the Chinese Government target a very small number of people and intend to protect the legitimate rights and interests of people of all ethnic groups, including the vast majority of Uyghur people. The Xinjiang government had taken these deradicalization measures under special circumstances and in accordance with the law, with the objective of preventing acts of terror and educating and saving a small number of people under the influence of religious extremism or guilty of minor offences or violations of the law. Education and training centres established in accordance with the law in Xinjiang combated terrorism and pursued deradicalization in essentially the same way as countries around the world administered deradicalization centres, community corrections, transformation and disengagement programmes. The basic human rights of people of all ethnic groups, such as the right to life, health and development, had been protected to the greatest extent possible, and the sense of security of the people of all ethnic groups had been greatly improved as no violent terrorist incidents had occurred for six consecutive years. Allegations of political detention were a malicious smear.

The Government indicates that deradicalization efforts are aimed at promoting the reintegration of people who have engaged in extremist behaviour and that the role of trade unions and enterprises in this regard includes legal advocacy; educating and guiding workers to abide by the law; maintaining unity and harmony; opposing hate and extremist speech and opposing engaging in unlawful activity.

The Committee takes due note of the information provided by the Government as well as policy and regulatory directions set out in official documents. In respect of Xinjiang’s 14th Five-Year Plan (2021–2025), it also notes that the Plan seeks to systematize the rule of law in countering terrorism and maintaining stability, with a view to maximizing unity and cohesion among the people and relying on ideological education, legal awareness-raising, psychological counselling and conflict resolution.

Further to the theme of promoting ethnic harmony in Xinjiang, the Committee also notes the Government’s white paper on “Historical Matters Concerning Xinjiang” (2019), which expresses the view that religions could only be accommodated within Chinese society by adapting themselves to the Chinese context. Secular, modern and civilized ways of life had to be encouraged and backward and outdated conventions and customs abandoned. Only the fusion of religious doctrines with Chinese culture could lead religions, including Islam, onto the Chinese path of development. In that context, the Committee notes the Government’s five-year plans for the sinification of Islam, Christianity and Catholicism (all for the period 2018–22) stating objectives such as “deepening patriotism, expressing faith using Chinese culture and strengthening the theological foundation of sinification”.

The Committee further notes that the Xinjiang Regulation on Deradicalization (XRD) contains an open-ended list of “primary expressions of radicalization”, including “wearing, or compelling others to wear, burqas with face coverings”, “spreading religious fanaticism through irregular beards or name selection”, and “generalizing the concept of halal”.

Having considered the information at its disposal, the Committee recalls its long-held view that the elimination of distinctions in employment, occupation and education depends on a general context of equality of opportunity and treatment without which the full application of the Convention remains illusory. This general context will depend on respect for the rule of law and the development of a climate of tolerance which fully respects voluntary self-identification and actively supports the resilience of ethnic, religious and linguistic identity in the face of a dominant culture, rather than seeking to assimilate such identity into a homogeneous society. Without such general context, the coexistence between minorities and the majority, or even among the various minorities themselves, can be fraught with conflict.

The Committee is bound to note that the policy orientations repeatedly expressed by the Government in recent white papers, its plans for the sinification of Islam and other religions and regulatory documents lend credibility to allegations of its active pursuit of a policy seeking to assimilate ethnic and religious minorities within the dominant ethnic group thus compromising the success of a policy to effectively eliminate discrimination in employment and occupation. The fundamental objective of such policy, enshrined in the ILO Constitution, must remain that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”.

As regards the policy’s orientation towards deradicalization and counter-terrorism, the Committee recalls that Article 4 of the Convention permits differential treatment of an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice. The Committee is, therefore, of the view that ensuring a counter-terrorism response compliant with the Convention requires a focus on individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the State while avoiding stereotypes potentially casting groups identified by ethnic and religious traits in a negative light. A compliant response would not permit the use of labour or vocational education and training as a means of altering the political opinion and religious practice of individuals or groups protected by the Convention in the absence of violent conduct or conduct demonstrably aimed at propagating violence. While noting the Government’s assurances that its deradicalization efforts affect a very small number of people, the Committee notes with regret not being offered any further details to assess the scope and the impact of such efforts. The open-ended definition of extremism in the XRD is supported by indicators (“primary expressions of radicalization”) that might otherwise be construed as matters of personal choice in relation to religious practice. Such a regulatory approach to deradicalization may amount to racial and religious profiling and give rise to a focus on ethnic and religious minorities through the lens of “extremism”. The extensive digital and personal surveillance apparatus in Xinjiang and the regulatory potential for administrative detention of suspected extremists, whether for the purpose of re-education or correction of minor offences that do not constitute a crime, further create a discriminatory climate in which the stated equal rights and opportunities in employment and occupation of ethnic and religious minorities cannot be effectively promoted or fully realized.

In respect of the role of trade unions and employers’ organizations, the Committee recalls that the Convention requires the Government to seek the cooperation of employers' and workers' organizations and other appropriate bodies but that the purpose of such cooperation, rather than enlisting social partners in public deradicalization efforts should be to promote the acceptance and observance of a policy designed to promote equality of opportunity and treatment in respect of employment and occupation. Guidance in respect of the cooperation to be sought may be found in the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111). Paragraph 2(d) of the Recommendation recommends organizations to abstain from obstructing or interfering with employers in their pursuit of the principle of non-discrimination, while encouraging employers' and workers' organizations not to practise or countenance discrimination in respect of admission, retention of membership or participation in their affairs.

Having duly considered the information provided by the Government, the discussions in the Conference Committee, ITUC observations and the findings of UN bodies, the Committee must reiterate its deep concern in respect of the serious allegations of discrimination against ethnic and religious minorities in Xinjiang, which appears to be based on policy directions expressed in numerous national and regional policy and regulatory documents. The Committee therefore once again urges the Government to: (i) review its national and regional policies with a view to eliminating all distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation; (ii) repeal provisions in the Xinjiang Uyghur Autonomous Region (Xinjiang) Regulation that impose deradicalization obligations on enterprises and trade unions and prevent enterprises and trade unions from playing their respective roles in promoting equality of opportunity and treatment in employment and occupation without discrimination based on race, national extraction, religion or political opinion; (iii) revise national and regional policies with a view to ensuring that the activities of vocational guidance, vocational training and placement services serve the purpose of assisting ethnic and religious minorities in the development and use of their capabilities for work in their own best interests and in accordance with their own aspirations, account being taken of the needs of society; (iv) amend national and regional regulatory provisions with a view to reorienting the mandate of vocational training and education centres from deradicalization based on ethnic and religious stereotypes and ideological education based on administrative detention towards the purpose set out in (iii); (v) provide detailed information on the allegedly small number of persons affected by the Government’s deradicalization policy; the conditions under which they are subject to administrative detention and any programmes related to training, employment or occupation; and the conditions under which they are released as it affects their access to the labour market; (vi) provide information on the measures taken to ensure observance of the policy to promote equality of opportunity and treatment in vocational training activities carried out in Xinjiang’s vocational training and education centres; and (vii) provide information on the measures taken to ensure observance of the policy to promote equality of opportunity and treatment for the Uyghurs and other ethnic minority groups when seeking to access employment outside the Xinjiang Autonomous Region.

Articles 1(1)(a) and 3(c). Discrimination based on sex. Sexual harassment. In response to the Committee’s previous comments, the Government expresses the view that victims of sexual harassment can effectively obtain legal support and relief through judicial channels. Section 1010 of the Civil Code identifies the elements constituting sexual harassment; establishes civil liability for sexual harassment; and requires organizations to set up preventive mechanisms and provide timely remedies. The All-China Federation of Trade Unions and the China Enterprise Confederation jointly developed a Guidebook for Eliminating Sexual Harassment in the Workplace with technical assistance from the Office.

In the course of the CAS discussion, it was acknowledged that the new Civil Code covers sexual harassment of both men and women. Concern was expressed, however, that the law did not fully define sexual harassment; failed to prohibit both quid pro quo and hostile work environment sexual harassment in all aspects of employment and occupation, including vocational training and job placement; and that equal access to legal remedies, including for ethnic and religious minorities, was unclear in the absence of available data. Figures cited in the course of the discussion suggest that because alleged victims bear the burden of proof, only a small percentage of the lawsuits filed result in a conviction of the alleged perpetrator and rarely in compensation for the victim.

The Committee welcomes the protection against sexual harassment which section 1010 seeks to provide to both men and women. Experience suggests that the burden of proving discrimination, including sexual harassment, is often harder to meet, to the point of constituting an insurmountable obstacle to establishing liability and ensuring an appropriate remedy. This would be particularly so in relationships marked by an imbalance of power and if there are no witnesses, which is often the case. To prevent dissuading victims from seeking redress and correct a situation that could otherwise result in inequality, the Committee has consistently recommended considering procedural measures such as shifting or reversing the burden of proof. The Committee notes in this regard the Violence and Harassment Recommendation, 2019 (No. 206), which encourages complaint and dispute resolution mechanisms for gender-based violence and harassment to shift the burden of proof in proceedings other than criminal proceedings. The Committee is also of the view that a procedural requirement for the alleged victim to present physical evidence corroborating oral testimony would not be appropriate in cases of sexual harassment that do not amount to physical assault or do not imply physical contact.

The Committee asks the Government: (i) to include a clear and comprehensive definition of sexual harassment to ensure that it covers both quid pro quo and hostile work environment harassment; offers protection in vocational education, vocational training, access to employment, conditions of employment and performing work in any occupation; and protects workers outside formal employment relationships; (ii) to consider making procedural adjustments ensuring easy access to appropriate and effective remedies and safe, fair and effective reporting and dispute resolution mechanisms and procedures in sexual harassment cases; and (iii) to continue to provide information on any cases of sexual harassment dealt with by the courts and the competent authorities, including on their outcome (sanctions imposed, court cases won as a proportion of lawsuits filed and remedies granted).

The Committee understands that the Law on the Protection of the Rights and Interests of Women was amended on 30 October 2022. Noting that the amended Law contains several provisions relevant to equality of opportunity and treatment for men and women, including sexual harassment, the Committee intends to examine the Law on the next occasion and asks the Government to provide information on its application.

Equality of opportunity and treatment for ethnic and religious minorities, including in the civil service. In its previous comments, the Committee had noted the continuation of workforce capacity-building in ethnic areas (including Inner Mongolia, Guangxi, Yunnan, Qinghai, Tibet, Guizhou, Ningxia, and Xinjiang) through special training programmes for ethnic talents, the recruitment of ethnic civil servants nationwide and capacity-building of civil servants in ethnic areas, including their active engagement in bilingual programmes.

In its statement to the CAS, the Government indicated that it was giving full play to the role of markets in regulating employment and promoting the free movement of workers between regions, industries and enterprises, causing urban employment to expand by 470,000 jobs annually between 2014 and 2020. It provided an example of a worker who had successfully challenged discrimination by his employer based on geographical origin winning compensation for emotional distress as well as an oral and written apology by his employer.

The Committee asks the Government to continue to provide information on the measures taken, and their results, to promote equality of opportunity and treatment for ethnic and religious minorities within China, including information on the current employment situation of various ethnic and religious minorities inside and outside the autonomous regions as well as employment data disaggregated by sex and ethnicity in the civil service.

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