Introduction

1. In accordance with article 19 of the Constitution, the Governing Body of the ILO, at its 231st Session (November 1985) requested governments to report on the position of their law and practice respecting the promotion of equality of opportunity and treatment in employment and occupation, as laid down in the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958. (Endnote 1) This decision marks the 30th anniversary of the adoption of these instruments and coincides with the 40th anniversary of the Universal Declaration of Human Rights (Endnote 2) to which explicit reference is made in the Preamble to the Convention. Furthermore, the Governing Body of the ILO decided at its 208th (November 1978) and 209th (March 1979) Sessions that countries that had not ratified Convention No. 111 should be specially invited to provide reports on this Convention under article 19 of the Constitution every four years. (Endnote 3) The first of these reports were examined in 1980 and the third examination was due in 1988. The reports thus supplied by the governments, together with those submitted in accordance with articles 22 and 35 of the ILO Constitution, by States which have ratified the Convention, have enabled the Committee of Experts on the Application of Conventions and Recommendations to carry out, in accordance with its usual practice, the third general survey of the situation as regards the implementation of these instruments, both in ratifying States and in countries which have not ratified the Convention. (Endnote 4)

Background to the survey

2. From the very first, the question of the observance of equality of opportunity and treatment has been one of the fundamental objectives of the International Labour Organisation. The Constitution of the ILO, as rendered in 1919, indicated that this principle is among those that are "of special and urgent importance" that should guide the policy of the International Labour Organisation, and set out in point 8 that "the standards set by law in each country with respect to the conditions of labour should have due regard to the equitable economic treatment of all workers lawfully resident therein". (Endnote 5) In a resolution adopted in 1938, the International Labour Conference invited all Members of the Organisation "to apply the principle of equality of treatment to all workers resident in their territory, and to renounce all measures of exception which might in particular establish discrimination against workers belonging to certain races or confessions with regard to their admission to public or private posts." (Endnote 6) The Declaration of Philadelphia concerning the Aims and Purposes of the International Labour Organisation stated that the attainment of conditions making it possible to achieve equality of opportunity and treatment was one of the central aims of national and international policy, and added that "all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective". (Endnote 7) In the field of equality between men and women, the adoption of the Equal Remuneration Convention (No. 100) and Recommendation (No. 90), 1950 constituted an important step forward in the achievement of this objective. (Endnote 8) In 1954, the Economic and Social Council of the United Nations, following a resolution adopted by the Human Rights Commission, entrusted the International Labour Organisation with the task of undertaking a study of discriminaton in the field of employment and occupation. This report on law and practice enabled the Governing Body of the ILO to consider the inclusion of the question on the agenda of the 40th Session of the International Labour Conference. (Endnote 9) The 1958 Convention and Recommendation are the first instruments adopted by the International Labour Conference with the specific subject of discrimination in respect of employment and occupation, with a completely general scope. (Endnote 10) No employment and no occupation in the widest sense of the term are excluded from the scope of the 1958 instruments, which apply to all workers. They cover not only access to training, to employment and to particular occupations but also the whole range of conditions of employment. These instruments are thus directed towards the application, in all fields relating to labour, of the general principles of equality, dignity and freedom proclaimed in the Universal Declaration of Human Rights (Endnote 11) which have received various forms of expression within the International Labour Organisation and at the international level.

ILO action regarding equality

3. In general, the scope as regards individuals of the Conventions and Recommendations adopted by the International Labour Conference is general and does not countenance forms of discrimination within the meaning of the 1958 instruments. Furthermore, the Conference has adopted Conventions and Recommendations dealing with specific subjects which contain provisions expressly prohibiting, or seeking to eliminate, the application of discriminatory measures. Thus the Equality of Treatment (Social Security) Convention, 1962 (No. 118) particularly addresses the equality of treatment between nationals and non-nationals in the field it covers. Since the previous General Survey, the following instruments have been adopted: the Minimum Age Recommendation, 1973 (No. 146); (Endnote 12) the Paid Educational Leave Convention (No. 140) and Recommendation (No. 148), 1974; (Endnote 13) the Rural Workers' Organisations Convention (No. 141) and Recommendation (No. 149), 1975; (Endnote 14) the Human Resources Development Convention (No. 142) and Recommendation (No. 150), 1975; (Endnote 15) the Migrant Workers (Supplementary Provisions) Convention (No. 143) and Recommendation (No. 151), 1975; (Endnote 16) the Labour Relations (Public Service) Convention, 1978 (No. 151); (Endnote 17) the Older Workers Recommendation, 1980 (No. 162); (Endnote 18) the Workers with Family Responsibilities Convention, 1981 (No. 156); (Endnote 19) the Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1982; (Endnote 20) the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159); (Endnote 21) and the Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169). (Endnote 22)

4. In the more limited field of equality of opportunity and treatment between women and men in employment and occupation, the International Labour Conference adopted, at its 60th Session, a Declaration on Equality of Opportunity and Treatment for Women Workers (Endnote 23) the importance of which was recalled by the Resolution on equal opportunities and equal treatment for men and women in employment. (Endnote 24) An ILO Plan of Action on Equality of Opportunity and Treatment of Men and Women in Employment (Endnote 25) was adopted by the Governing Body in 1987 to give effect to the above resolution.

5. The ILO has developed other forms of action in order to promote the achievement in all countries of equality of opportunity and treatment and the elimination of discrimination in the field of labour, through an improved knowledge of the problems involved in discrimination and the appropriate means for resolving them. In addition to the compilation and dissemination of information on developments in certain countries and the preparation of specialised publications (guides of good practice intended for government departments, employers' and workers' organisations), many meetings were organised in all the regions (expert meetings, symposia, seminars) in order to examine these matters, particularly on a tripartite basis.

6. As part of the functions assigned to the Office under article 10 of the Constitution, (Endnote 26) certain specific situations were examined together with possible solutions to them from the point of view of equality of opportunity and treatment in the field of labour.

7. Such is the case with ILO action concerning the apartheid policy of the Republic of South Africa. (Endnote 27) In the first General Survey on the application of Convention No. 111, in 1963, the Committee emphasised the gravity of apartheid policy when it examined the report supplied at that time by the South African Government. The Republic of South Africa ceased to be a Member of the ILO on 11 March 1966 and has not ratified Convention No. 111. (Endnote 28) In 1964, at its 48th Session, the International Labour Conference adopted a Declaration concerning the policy of apartheid in that country, in which it expressed its condemnation of the policy and instructed, inter alia, the Director-General to submit a special report on that subject each year. At the request of the International Labour Conference in 1980, the 1981 special report summarised the measures adopted by the South African Government concerning the recommendations contained in the 1964 ILO Programme for the Elimination of Apartheid in Labour Matters. (Endnote 29) The conclusions concerned the three major branches of labour matters considered in the programme: equality of opportunity in respect of admission to employment and training; freedom from forced labour; freedom of association and the right to organise. The Report found in particular that separate educational systems still existed for each racial group and remained a key element in the policy of apartheid, that restrictions upon work persisted and that despite progress regarding membership in trade unions, a number of discriminatory aspects of the legislation had been retained. At its 67th Session (1981) the International Labour Conference adopted a Declaration concerning the Policy of Apartheid in South Africa, bringing up to the date the 1964 Declaration. Paragraph 5 of the Declaration confirmed the Director-General's mandate to monitor and follow the situation in South Africa in respect of labour and social matters and to submit a special report on the subject every year for consideration by the Conference Committee on Apartheid.

8. Since 1978, a report by the mission sent by the Director-General to examine the situation of workers of the Occupied Arab Territories has been submitted to the International Labour Conference every year. The mission has been guided in its work "by the principles and objectives laid down in the Constitution of the ILO (Declaration of Philadelphia) and in the provisions adopted on the subject by the Conference, with particular reference to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Recommendation (No. 111) which supplements it (...)". (Endnote 30) The representatives of the Director-General pointed out in their most recent report that the recommendations made previously, particularly with regard to the following points, are still relevant: "(3) improvement of working conditions by the full application in practice of the principle of equal treatment for workers from the occupied territories employed in Israel, particularly in view of the impact of the work permit system on job security; (...) (6) elimination of inequality of opportunity and treatment resulting, in the field of employment and development, from the policy relating to Israeli settlements in the occupied territories; (7) elimination of inequality of treatment with respect to social security for workers from Arab territories employed in Israel (...)". (Endnote 31)

Activities of the United Nations and other organisations

9. The International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, which contain provisions concerning equality (respectively: Article 2, paragraph 3; Article 3, paragraph 7(a)(i); and Article 2, paragraph 1), came into force during the period under consideration. (Endnote 32) As regards the standard-setting activities of the United Nations, since the previous general survey, the General Assembly has adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid, (Endnote 33) and the Convention on the Elimination of All Forms of Discrimination Against Women. (Endnote 34) A Committee on the Elimination of Discrimination Against Women, with the task of considering the progress made in the implementation of the Convention, started work in 1982. Furthermore, two Declarations have been adopted since 1971 in fields relating to the application of the Convention: the Declaration on the Rights of Disabled Persons (Endnote 35) and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. (Endnote 36) Finally, UNESCO adopted a Declaration on Race and Racial Prejudice. (Endnote 37) It should be recalled that the Committee of Experts provided for in Part II of the International Convention on the Elimination of All Forms of Racial Discrimination, in order to examine its application on the basis of reports from the States Parties, began its work in January 1970.

10. At the regional level, various instruments have been adopted for the promotion and application of the principle of equality of opportunity and treatment in employment and occupation. The American Convention on Human Rights (Endnote 38) lays down that the States Parties to the Convention undertake to ensure to all persons subject to their jurisdiction the free and full exercise of their rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition (Article 1, paragraph 1). The African Charter on Human and Peoples' Rights, adopted in 1981, guarantees that every individual shall have the right to work without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. (Endnote 39) The European Social Charter of 1961 in Article 1, paragraph 2, provides, inter alia, for the elimination of all forms of discrimination in employment (Endnote 40) and in Article 4, paragraph 3, recognises the right of men and women workers to equal pay for work of equal value. Article 48, paragraph 2, of the Treaty establishing the European Economic Community, indicates that the freedom of movement for workers "shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment". The principle that men and women shall receive equal pay for equal work is included in Article 119 of the Treaty. Since 1975, the European Communities have pursued their activities to promote equality of opportunity and treatment in a series of directives adopted by the Council covering a large number of questions related to equality between men and women. (Endnote 41) On the basis of its mandate as set out in its Constitution (Article 3, paragraph 3(b)) to examine problems relating to the employment of women,the Arab Labour Organisation has also dealt with the question of equal remuneration for women in two Arab Labour Conventions which refer to equal wages for similar work. (Endnote 42)

Ratification of the Convention

11. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111), has received 34 ratifications since the last General Survey in 1971; 30 years after its adoption by the Conference, this brings the total number of ratifications to 108, placing the instrument among the most widely ratified Conventions by countries in all regions of the world. The Convention is also applicable without modifications to eight non-metropolitan territories. Ratifications and declarations of application are listed with reports received in Appendix II. (Endnote 43)

12. From the reports submitted by countries that have not ratified the Convention, it appears that a number of them are prepared to do so. The Government of Uruguay has indicated that the difficulties preventing ratification of the Convention have disappeared with the restoration of democracy and the repeal of provisions contrary to those of the Convention. A draft ratification Act, supported by the tripartite advisory group on international relations, has been submitted to the Senate. The Government of Suriname emphasised the difficulties that could result from the lack of statistics on the situation of women in the rural and urban informal sectors, although the ratification of the Convention raised no major difficulties in view of government policy. The Convention will be submitted in the near future by the Minister of Labour to the Labour Advisory Board with a view to its ratification. The Government of Belize indicated in its report that, although there were no apparent difficulties in the application of the principle, supplementary studies might be necessary before ratification could be envisaged. In Burundi the Government emphasised that, although there were no difficulties in law or practice preventing the ratification of the Convention, the competent authority reserved the right to judge the suitability of formally ratifying the Convention. The Government of the United Arab Emirates stated that the State had established priorities and stages for the ratification procedure in order to be in a position to comply with all the obligations resulting from ratification and to set up a suitable technical body, and for these reasons it had not yet ratified the Convention. The Governments of Cameroon, Nigeria, the Seychelles and Zaire stated that there were no apparent difficulties preventing or delaying ratification of the Convention, without giving further details regarding their intentions in this respect. The Government of Zimbabwe indicated that more time was needed to fully assess the effects of the national egislation before major changes were made to align it with the Convention and/or the Recommendation.

13. A number of governments noted some difficulties regarding the possibility of ratifying the Convention. The Government of China noted that the main obstacle to ratification lay in the need to further improve national legislation. The Government of Ireland stated that the principal difficulty preventing the ratification of the Convention lay in the contents of Article 1, paragraph 1(a), of the Convention which included grounds of discrimination (race, colour, religion, political opinion, national extraction and social origin) which are not the subject of national legislation. (Endnote 44) The Government of Botswana indicated that the issue of women not being allowed to undertake underground work would be considered by the Government since it may, in spite of the good intentions, be seen as a form of discrimination on the basis of sex. (Endnote 45) The Government of Japan stated, in reply to the question concerning the prospects of ratification, that the Convention involved provisions that are closely related with employers' freedom of contracting, and that, in this respect, it was necessary to give consideration to the harmony between domestic law and the Convention. (Endnote 46) The Government of Luxembourg indicated that its legislation contained discriminatory measures concerning foreign workers with regard to their participation as representatives of employees in the enterprise, and considered that this might constitute an obstacle in the medium term to the ratification of the Convention. (Endnote 47) The Government of the United Kingdom indicated that it was fully committed to a policy of equal opportunity in the employment field in Great Britain and Northern Ireland; however, it was not intended at present to alter the legislation to give further effect to the provisions of the Convention or the Recommendation, because of difficulties in a number of areas (certain qualifications concerning the manner in which the 1976 Race Relations Act is applied to members of the Armed Forces, restrictions in certain cases on the employment of forigners in the public service, distinctions in the wages paid to seafarers employed on board vessels flying the flag of the United Kingdom according to whether they are domiciled in the United Kingdom or not). The Government of Sri Lanka noted that an obstacle to ratification was the absence of specific legislation prohibiting discrimination in employment and occupation and the fact that the national legislation fell short of requirements of the Convention in several respects (discrimination in wages paid to women and men in certain sectors, restrictions in the recruitment of women to certain services and posts in the public service, etc.). The Government of Thailand stated its awareness of the fact that certain provisions of the Convention were not yet covered by national law or practice, although it was the duty of the Department of Labour to promote and encourage non-discrimination in employment, occupation and training. The Government of Malaysia indicated that it had no immediate plan to ratify the Convention but would continue to review its labour law and practice as far as possible to be in line with the provisions of the Convention and Recommendation.

Available information and arrangement of the survey

14. The reports on the Convention submitted by ratifying and non-ratifying countries, and the reports on the Recommendation, have made it possible to gather information concerning 139 States and 17 non-metropolitan territories. A table showing the reports received is given in Appendix II. The reports from certain countries supplied detailed information on internal measures involving various forms of action against discrimination envisaged in the Convention and the Recommendation, and many examples quoted in this survey have therefore been drawn from these reports. The Committee has also been able to examine the comments made by a number of employers' and workers' organisations (Endnote 48) on their governments' reports. (Endnote 49) Finally, following its usual practice, the Committee has sought to supplement the information available with research into legislation, official documents and other appropriate sources.

15. The information supplied is often incomplete, doubtless due to the fact that the scope of the standards has not always been accurately gauged, both with regard to the diversity of the forms of discrimination covered, and with regard to the types of measures to be taken in order to promote equality and eliminate discrimination. The Committee wishes to emphasise the extent of the obligation set forth in Article 3(f) of the Convention, under which each Member that has ratified the Convention shall "indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action". The achievement of favourable conditions for equality of opportunity and treatment in employment and occupation is a continuing endeavour, and it is the responsibility of each government to continue supplying, in its successive reports, information on developments regarding its policy. The scope of the information that it is necessary to compile concerning legislative measures and regulations and national practice, in order to fulfil this obligation, corresponds to the scope of the fields covered by the Convention and Recommendation. The Committee has previously indicated, by way of illustration, the information concerning the fields covered by the Convention: constitutions and basic national laws; labour legislation in toto; provisions concerning access to particular occupations and their exercise, the civil service, vocational training, social security and welfare services, employment services; provisions relating to the security of the State, those referring to the protection or assistance of certain categories of persons; educational programmes; practical data on the employment of categories of persons defined by race, sex, etc., on wage levels, on the activities and functions of the public services in connection with employment, on the activities of occupational organisations; collective agreements; statistics; rulings of courts or other bodies; information on th machinery for guaranteeing the rights accorded under constitutions or basic laws, etc. (Endnote 50) To these may be added, information on the activities of specialised bodies for the promotion, implementation and supervision of the policy of equality in countries where it has been considered worthwhile to set up such bodies. The Committee is far from having at its disposal all the information that it would have been interesting to examine, particularly with regard to the practical, everyday application of the policy of equality of opportunity and treatment. (Endnote 51)

16. The Committee has attached importance, in this as in its previous surveys, to assisting governments in arriving at an assessment of the scope of international standards with regard to their affirmative action for the promotion of equality of opportunity and treatment. The references offered by way of illustration in the survey do not imply that there are no other bodies, practices or comparable situations; nor do they imply any attempt at a final evaluation by the Committee given the additional information which would be necessary for this purpose. In the following chapters, the Committee will refer to the scope of application as regards individuals, the definition and the criteria of discrimination set out in the 1958 instruments (Chapter 1), before examining their substantive scope -- access to training and employment, conditions of employment -- (Chapter II), requirements and measures that do not constitute discrimination (Chapter III) and the implementation of the principles (Chapter IV); the Committee will then formulate its general conclusions (Conclusions).

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Endnote 32

Endnote 33

Endnote 34

Endnote 35

Endnote 36

Endnote 37

Endnote 38

Endnote 39

Endnote 40

Endnote 41

Endnote 42

Endnote 43

Endnote 44

Endnote 45

Endnote 46

Endnote 47

Endnote 48

Endnote 49

Endnote 50

Endnote 51

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C100 Equal Remuneration Convention, 1951
Conventions: C140 Paid Educational Leave Convention, 1974
Conventions: C141 Rural Workers' Organisations Convention, 1975
Conventions: C142 Human Resources Development Convention, 1975
Conventions: C143 Migrant Workers (Supplementary Provisions) Convention, 1975
Conventions: C151 Labour Relations Public Service) Convention, 1978
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C158 Termination of Employment Convention, 1982
Conventions: C159 Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983
Recommendations:R090 Equal Remuneration Recommendation, 1951
Recommendations:R146 Minimum Age Recommendation, 1973
Recommendations:R148 Paid Educational Leave Recommendation, 1974
Recommendations:R149 Rural Workers' Organisations Recommendation, 1975
Recommendations:R150 Human Resources Development Recommendation, 1975
Recommendations:R151 Migrant Workers Recommendation, 1975
Recommendations:R162 Older Workers Recommendation, 1980
Recommendations:R166 Termination of Employment Recommendation, 1982
Recommendations:R169 Employment Policy (Supplementary Provisions) Recommendation, 1984