Chapter I. Scope of the convention as regards individuals, definition and grounds of discrimination

Section 1. Scope of the Convention as regards individuals

Application of the Convention to all persons

17. The Committee of Experts has already emphasised that there is no provision in either the Convention or the Recommendation limiting their scope as regards either individuals or occupations. This is in line with the purpose of these instruments, which is to protect all human beings against the types of discrimination to which they refer. (Endnote 1) The elimination of discrimination in employment or occupation on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin, therefore concerns both nationals and non-nationals.

18. The Committee of Experts, taking note of a resolution adopted by the International Labour Conference at its 62nd (Maritime) Session, 1976, which referred to the existence of racial discrimination on ships, particularly against seafarers of Asian, African and Latin American origin, recommended that this discrimination should be eliminated "so that, under the same flag, seafarers with the same qualifications should benefit from all the advantages offered by legislation or by collective agreements applicable to seafarers of the country under whose flag the ship is registered", and it requested the governments concerned to indicate, inter alia, the inspection visits or other steps taken to ensure that the Convention is applied in law and in practice, since it "is applicable to all workers". (Endnote 2) Some countries have indicated that their legislation excluded the employment of seafarers of foreign nationality on board vessels flying their national flag and that consequently there were no discriminatory practices on grounds of race on board their vessels. (Endnote 3) Most countries have replied that the provisions of their maritime legislation which prohibited discrimination on the basis of race were applicable to both nationals and foreign seafarers. (Endnote 4) By contrast, reciprocity stipulations governing the application to foreign seafarers of the anti-discrimination provisions in maritime legislation do not appear to be fully in accordance with the Convention, under which a national policy should be adopted to eliminate discrimination based on specific grounds for all persons. (Endnote 5)

19. In many cases labour laws apply either to any contract concluded between a worker and an employer or an enterprise, (Endnote 6) or to any worker without distinction as to his or her nationality, (Endnote 7) and the provisions that they contain respecting equality of opportunity and treatment are applicable to both foreigners and nationals. Several countries that have ratified the Convention have made specific provisions respecting equality applicable to the whole of the national territory, to vessels and aircraft flying their flag or registered in the country, and in some cases to off-shore industrial installations situated on the continental shelf. (Endnote 8) In certain countries the labour legislation applies to both nationals and foreigners, but the provisions respecting protection against discrimination only cover citizens of the country. (Endnote 9)

20. In Mongolia, the legislation provides that foreign citizens who are permanently resident in the country shall enjoy the same rights as the citizens of the country with regard to remuneration for work, rest periods, employment protection and medical services. (Endnote 10) In the Netherlands, a Bill has been brought before Parliament for the purpose of amending the Act governing the access of foreigners, including persons belonging to ethnic minorities, (Endnote 11) to employment in the public sector. The Bill lays down the jobs reserved for nationals, such as magistrates, police officers, captains of ships, etc., while all other jobs may be filled by foreigners, who should normally be in possession of a work permit, with the exception of nationals of member States of the European Community. This measure comes within the framework of a broader policy respecting minorities intended to create the conditions that are necessary to ensure equality of opportunity. The studies that have been undertaken illustrate that the types of discrimination to which foreigners are subject are principally based, not on nationality, but on grounds such as race and colour. A report submitted to Parliament in 1983 (Minderheidennota), examines the specific measures that have been taken to protect the various national minorities and describes the measures that are contemplated respecting the dissemination of information and public education, employment and housing policies and the institution of a body in which minorities can participate at the national level. (Endnote 12)

Migrant workers

21. In ILO instruments, migrant workers are covered by special provisions: under the terms of Paragraph 8 of Recommendation No. 111, regard should be had to the provisions of the Migration for Employment Convention (Revised), 1949 (No. 97) relating to equality of treatment and to those of the corresponding Recommendation with respect to immigrant workers of foreign nationality and the members of their families, relating to the lifting of restrictions on access to employment. (Endnote 13) After the adoption of the 1958 instruments, Convention No. 97 was supplemented by the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and by Recommendation No. 151, which essentially repeated in Parts II and I respectively the definitions and terms of Convention No. 111. Equality of opportunity is therefore added to equality of treatment with the implication that measures should be taken to promote both. In accordance with Article 11, paragraph 1, of Convention No. 97, the term "migrant for employment" means "a person who migrates (Endnote 14) from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment". The provisions of Article 6 of Convention No. 97 and those of Part II of Convention No. 143 apply only to immigrants who are legally present within the territory of the member State.

Section 2. Definition of discrimination

22. Article 1, paragraph 1(a), of Convention No. 111 defines discrimination as "any distinction, exclusion or preference (made on the basis of certain criteria) which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation". This purely descriptive definition contains three elements:

-- a factual element (the existence of a distinction, an exclusion or a preference, without specifying whether this arises from an act or an omission) which constitutes a difference in treatment;

-- a ground on which the difference of treatment is based; (Endnote 15)

-- the objective result of this difference in treatment (the nullification or impairment of equality of opportunity or treatment).

Through this broad definition, the 1958 instruments cover all the situations which may affect the equality of opportunity and treatment that they are to promote. An examination of the available information reveals several points that merit special attention. In the first place, the definition of discriminatory measures in certain countries may restrict the protection intended by the Convention. In the second place, certain other specifications concerning the direct or indirect nature of discriminatory acts have been laid down either in legislative provisions, or by courts, or by organisations set up to deal with matters concerning discrimination. Finally, as already emphasised by the Committee in its General Survey of 1963 on the same subject, such distinctions, exclusions or preferences may have their origin in law, but also, particularly, in practice. (Endnote 16)

Definitions of discrimination contained in legislation

23. Most texts respecting equality of opportunity and treatment lay down types of distinctions that are prohibited and the fields in which this prohibition is to apply, by specifying that any difference in treatment based on one of the prohibited grounds and applying to one of the fields enumerated (access to employment, to occupation, etc.) a priori constitutes discrimination. Examination of the ground on which the distinction is made and of the subject it affects is sufficient to establish the illegitimate nature of the difference in treatment. Cases where considerations based on the race of a person are used to reject his or her application for a job, or where a woman is denied enrolment in an internal further training course on the pretext that women's careers are not long enough to justify the investment are examples of this. Certain laws however define discrimination as any differentiation made to the detriment of a person without material justification or just cause (Endnote 17) or use the concept of inequitable or unjust distinctions. By this approach arbitrary acts or behaviour will be defined as discriminatory. In some countries it is specified that discrimination based on certain grounds is punishable by law. (Endnote 18) Through the prohibition thus laid down, the law defines what is deemed to constitute discrimination. In other countries, the legislation respecting discrimination prohibits "all discrimination" or "any form of discrimination" (Endnote 19) without specifying the grounds of discrimination that are forbidden. Many of the legislative provisions adopted have either incorporated the definition of discrimination set forth in the Convention in its entirety (Endnote 20) or have added to it. Distinctions, exclusions and preferences have in some cases been supplemented by reference to restrictions, (Endnote 21) as well as to segregation and separation. (Endnote 22) In this sense, discrimination refers to the exclusion, in the general meaning of the term, of certain persons because they belong to a group that is defined by intrinsic charcteristics.

24. Other texts place more emphasis on the fact that discrimination is a violation of the principle of equality of opportunity and treatment. They set forth the principle as a substantive right, which not only incorporates all other rights and freedoms but also covers forms of behaviour which would normally be at the discretion of the individual in economic and social life. These forms of behaviour are covered by the law whenever they are based on grounds defined as being illegal. Certain laws refer to the principle of equality of opportunity and treatment either in general terms (Endnote 23) or understood as implying the absence of any discrimination based on one or more grounds. (Endnote 24) In some countries, it is laid down that every individual has the right to full and equal recognition and enjoyment of the fundamental rights and freedoms, including the right to exercise the job or occupation of their choosing, and discrimination occurs when a distinction, exclusion or preference has the effect of nullifying or impairing the recognition or exercise of this right. (Endnote 25) Similarly, discrimination occurs when on the basis of one of the prohibited grounds a person is treated less favourably than persons who otherwise have the same characteristics or when a person is obliged to fulfil a condition that is not required of other persons. (Endnote 26) The concept of equality of opportunity and treatment, without discrimination based on one or more grounds, implies that individuals or groups of individuals have identical rights and obligations as far as distinctions based on this ground or these grounds are concerned. The right to equality of opportunity and treatment cannot be envisaged as an absolute right. (Endnote 27)

25. In several countries, in addition to the general definition of discrimination, the legislative texts enumerate acts or types of behaviour that by their nature are qualified by law as discrimination. (Endnote 28) Certain texts attempt to cover all the manifestations of discrimination whatever form they may take. (Endnote 29) In certain countries, the acts and types of behaviour that are enumerated are deemed to be discriminatory, placing the burden on the employer of proving the non-discriminatory nature of the acts or behaviour. (Endnote 30) In Zimbabwe, the Labour Relations Act of 1984 provides that a person shall be deemed to have discriminated if his act or omission causes or is likely to cause persons to be treated less favourably than other persons on the grounds of their race, tribe, place of origin, political opinion, colour, creed or sex. (Endnote 31)

26. Certain definitions of discrimination refer to the intentional nature of discrimination either directly, by linking the illegal nature of the act of discrimination to the intention of its author, (Endnote 32) or indirectly by defining discriminatory acts and practices in terms that presuppose the intention to practice discrimination or which exclusively address an identifiable author. (Endnote 33) The limitations on the definition of discrimination that are introduced by reference to its intentional nature are not in accordance with the Convention, which covers all discrimination without referring to the intention of an author of a discriminatory act or even without there needing to be an identifiable author, as in the case of indirect discrimination or occupational segregation based on sex. The direct or indirect nature of discrimination is, however, explicitly covered by a number of provisions. (Endnote 34)

Suspect class

27. The concept of suspect class was developed by the Supreme Court of the United States in order to supervise the manner in which the principle of non-discrimination under constitutional law was applied by federal and state authorities. Any distinction shall be deemed suspect if it affects a class that has traditionally been the victim of hostility and prejudice, that has been set aside from the rest of society or that has been viewed in such a stereotypical way that there are serious grounds for doubting that its interests have been suitably taken into consideration in the legislative process or in governmental action. When the members of such a group undertake a legal challenge of legislation or governmental action, the judge must be particularly vigilant and must set aside the usual presumption of constitutionality, since it is more than likely that the legal action has been inspired by customary habits or an intention to discriminate on other than legitimate grounds. A distinction affecting a suspect class is subject to this standard of strict scrutiny and may only be declared valid if it is demonstrated that the difference in treatment was introduced in order to achieve a compelling or overriding governmental objective, and that the difference in treatment was necessary to achieve this objective. Distinctions based on race, national origin and alienage are deemed to be suspect. (Endnote 35) The Court has refused to extend the concept to other categories, such as the disabled, the elderly and women, but in its rulings has introduced an intermediate standard of review establishing the principle that any distinctions that are made must be justified by their close connection to a major objective of the Government. The provisions of the Convention do not establish this type of differentiation when dealing with discrimination, since "any distinction, exclusion or preference" based on one or more of the grounds that are forbidden shall be deemed to be a suspect class whose existence necessitates strict scrutiny.

The objective consequences of discrimination

28. In referring to "the effect" of a distinction, exclusion or preference on equality of opportunity and treatment in employment and occupation, the definition given by the 1958 instruments uses the objective consequences of these measures as a criterion. Indirect forms of discrimination and phenomena such as occupational segregation based on sex consequently come within the scope of the Convention. (Endnote 36) The concept of indirect discrimination (Endnote 37) refers to situations in which apparently neutral regulations and practices result in inequalities in respect of persons with certain characteristics or who belong to certain classes with specific characteristics (race, colour, sex, religion, for example). In a number of countries, the legislation that has been adopted regarding equality between men and women in employment provides that this equality implies the absence of direct or indirect discrimination and gives as an example of indirect discrimination, difference in treatment on the grounds of marital or family status. (Endnote 38)

Discrimination in law and in practice

29. Discriminatory treatment may consist both of the adoption of general impersonal standards that establish distinctions based on forbidden grounds, and in the specific attitude of a public authority or a private individual that lead to persons or members of a group being treated unequally when they should enjoy the same rights and benefits as others. (Endnote 39)

Section 3: Grounds of discrimination

30. Not all distinctions, exclusions or preferences in employment or occupation are contrary to the Convention. Those which are considered to be unlawful, and therefore are covered by the national policy to promote equality of opportunity and treatment, are those based on one of the grounds expressly referred to in Article 1, paragraph 1(a) of the Convention, or on a ground determined after consultation with representative employers' and workers' organisations, in accordance with Article 1, paragraph 1(b) of the Convention. Some national provisions respecting discrimination provide that equality of opportunity and treatment shall be implemented "without distinction of any kind" or "without any discrimination", without referring to specific grounds of discrimination or by making only illustrative reference to them. In practice, such provisions may be interpreted as placing upon the person or entity making any distinction the burden of proving that it is justified by the requirements of the job. (Endnote 40) In general, a limitative enumeration of grounds of discrimination is given in the various provisions respecting equality of opportunity and treatment. Two observations may be made on the basis of the available information: firstly, in a large number of countries, the grounds of discrimination have been the subject of more precise and searching definitions based on national conditions and usage. That greater precision in the delimitation of basis of discrimination has been the work of judges responsible for supervising the application of legislation on equality, but also of the legislature in collaboration with specialised bodies including, in many cases, representatives of employers' and workers' organisations. This trend is well illustrated by the multitude of constitutional and legislative provisions and regulations in existence. (Endnote 41) Secondly, in some countries measures have been adopted to ensure equality of opportunity and treatment against forms of discrimination not referred to in Article 1, paragraph 1(a) of he Convention, thus giving rise to the determination of further grounds of discrimination in accordance with Article 1, paragraph 1(b), of the Convention.

Subsection 1. Grounds of discrimination referred to in Article 1, paragraph 1(a), of the Convention

31. Article 1, paragraph 1(a), of the Convention and the corresponding provisions of the Recommendation refer to a restrictive list of seven grounds of discrimination: race, colour, sex, religion, political opinion, national extraction and social origin. The preparatory work to the Convention reveals that the origin of the grounds is attributable to the Universal Declaration of Human Rights. (Endnote 42) In 1955, the Governing Body expressed the view "that the documents submitted to the Conference should deal with discrimination on all the grounds listed in Article 2(1) of the Universal Declaration ...". (Endnote 43) The grounds of discrimination that were taken up refer to individual qualities, characteristics and attributes which are immutable, such as race or colour, or which stem from social categorisations, such as political opinion or religion. The international instruments adopted subsequently to the Convention emphasise that discrimination based on such grounds is contrary to human dignity. (Endnote 44) In practice, the distinction between various grounds of discrimination may be a fine one in view of the fact that an individual may be subject to discrimination based on several grounds. The Committee of Experts has noted that social origin may be considered as presumptive even if evidence of certain political opinions which work either to the advantage or disadvantage of the persons concerned. (Endnote 45) This can also be seen to be true in the case of religion, race and colour. In Australia, in the area of discrimination, based on sex, marital status or pregnancy, the doing of an act is deemed to be discriminatory even if it is based on several grounds, provided the grounds include one of the specific grounds covered by the law, whether or not that particular ground is the dominant or substantial reason for the doing of the act. (Endnote 46) Some of the grounds of discrimination listed in the 1958 instruments are immediately apparent, such as colour and sex, and, to a lesser extent, race; the connection between the possession of one of tese attributes and the nullification or impairment of equality can be established without major difficulties. In Canada, the term "visible minorities" was chosen, after consultations with the representatives of minority groups, in order to collectively designate persons who are distinguished from the rest of the population by their race and colour, and their relatively small number. The purpose of using this term was not to cast any racial innuendo but rather to face up openly to the needs and potential problems of such persons so that their situation could be examined and employment and other programmes implemented in order to redress inequities. (Endnote 47) Other grounds, such as social origin and political opinion, are not necessarily revealed by distinctive external features within the framework of employment and occupation. Difficulties may therefore arise in providing proof of discrimination, particularly when the burden of proof lies with the injured party.

32. The grounds for discrimination envisaged in the Convention and Recommendation are very diverse and an examination of the reports reveals that they are not all given equivalent attention by the authorities concerned. Combating discrimination that is based on grounds of sex involves the use of methods that differ substantially from those employed in the event of impairment of equality on the basis of religion or political opinion. It would appear from an examination of the reports that certain grounds for discrimination, and particularly sex, have been given particular attention by governments, with the frequent result that machinery has been established to provide for the practical implementation of the national policy envisaged in Article 2 of the Convention. By contrast, some reports indicate that other grounds of discrimination are not encountered in practice, and in some cases there is even no mention made of them in the reports. The Committee of Experts has already noted (Endnote 48) that it is essential, when reviewing the position and deciding on the measures to be taken, that governments should give their attention to all the grounds of discrimination envisaged in the 1958 instruments.

A. Race and colour

33. It is preferable to examine discrimination on the basis of race and colour together since difference of colour is only one of the ethnic characteristics, although it is the most apparent, that differentiate human beings. These distinctions are covered by a very large number of constitutional and legislative provisions. In many countries the law expressly refers to these two grounds of discrimination. (Endnote 49) The legislation in some countries only refers to one or the other of these two grounds of discrimination, (Endnote 50) but the information supplied shows that in practice protection is provided at the same time against discrimination based on grounds of race or on grounds of colour. It appears that the term "race" is frequently used erroneously to refer to population groups which could more accurately be described as linguistic communities or minority groups whose identity is based on cultural or religious characteristics, or as nations. The difficulty lies in establishing a definition of what should be understood by the terms "race" and "colour". (Endnote 51) In one sense, attempts to define race and colour are of little value in the application of legislation that is intended to combat discrimination in so far as it is not the race, colour or ethnic origin of the person who is discriminated against that is really the point at issue, but rather the negative aspects that the author of the discrimination imputes to the person who is the object of discrimination. Some laws with the specific objective of combating racial discrimination combine, under "on the basis of race", (Endnote 52) race, colour and also nationality and ethnic or national origin. (Endnote 53) In some countries, the bodies responsible for applying the legislation respecting equality in the various regions have not attempted, with one exception, (Endnote 54) to define or specify the concept of race, colour or ethnic origin when this has been invoked by the complainant. In all cases, either by observation or testimony it was assumed that if the discriminatory act was proved, te prohibited ground was obvious. In the United States, the local educational authorities appealed against a school desegregation order on the grounds that it contained no definition of a Negro. The Federal Court of Appeals rejected this appeal and emphasised that "the record indicates that in the past the School District has apparently had no difficulty in identifying Negroes for the purpose of segregating them. For desegregation they can be identified with similar ease". (Endnote 55) In France a decision given by a Court of Cassation is a good illustration of the difficulties encountered in certain cases in establishing a rigorous distinction between grounds such as race and nationality. When an employer ended the probationary period of a worker on the grounds of his nationality, the Court applied provisions prohibiting discrimination on grounds of race in order to establish the improper nature of the termination of the employment contract. (Endnote 56)

34. In general terms, discrimination against ethnic minorities (Endnote 57) is considered as racial discrimination. (Endnote 58) But distinctions can be drawn between the situation of ethnic minorities, in particular indigenous and tribal groups, and that of any other minorities disadvantaged on racial grounds. In some countries, racial minorities are comprised largely of immigrant workers, or the descendants of immigrants, who have entered the country in order to perform low-paid labour. They may be the descendants of slaves, of indentured workers, or of persons who have immigrated of their own accord to the country of destination during periods of labour shortage. In any event, they comprise persons whose ancestors, or who themselves, have departed from their countries of origin and entered new societies, frequently in a situation of comparative disadvantage with regard to the citizens of the country where they now reside. (Endnote 59) While certain racial minorities may have been able to overcome this initial disadvantage, this is very often not the case. Many live in extreme poverty, often in urban ghettoes, and possess few assets or competitive skills. For them, the essential aim of affirmative action programmes is to provide preferential treatment in education and training programmes, or in systems of recruitment and promotion for salaried positions. Special measures thus aim to overcome this initial disadvantage, and to enable these racial minorities eventually to compete on an equal footing with other members of national society. Measures thus seek to train and help the disadvantaged persons adapt to the available employment opportunities, rather than adapting employment and training opportunities to the particular characteristics of the persons concerned.

35. In the case of indigenous and tribal populations, (Endnote 60) the situation can be fundamentally different. In certain cases, when past policies have done little to protect indigenous land and cultures and have favoured integration, the situation of disadvantaged indigenous and tribal groups may indeed be similar to that of all other racially disadvantaged groups. These peoples may have lost their roots and may have migrated to urban areas where they are severely disadvantaged in the regular labour market. And in rural areas too, if indigenous and tribal peoples have lost all or most of their traditional lands, and are now working as agricultural labourers, the main employment-related problem confronting them may be de facto discrimination in conditions of employment. And if they earn their livelihood as subsistence farmers alongside non-indigenous peasants and tenant farmers, their main problems arise from unequal access to credit, marketing facilities, agricultural extension and skills training facilities. In all these cases state policies will need to focus on equal opportunity in providing the skills, assets and resources on an equal basis as they are made available to other sectors of the national population. In the majority of cases, perhaps most particularly in the developing countries, where special measures have been adopted for these groups, they have been directed towards employment opportunities outside the traditional areas of occupation of indigenous and tribal peoples. They have also aimed to provide more genuine equality of opportunity in traditional occupations, whether in shifting and nomadic agriculture, or in sedentary agriculture, or in crafts. In many countries, despite the continued loss of their traditional lands over the past centuries, indigenous and tribal peoples have to a greater or lesser extent been able to preserve institutions, customs and occupational lifestyles very different from those of other population groups and have increasingly expressed their concern that these differences should be protected and safeguarded by special legislative and administrative measures. One particularly vulnerable group are isolated forest dwellers, who have had little or no contact with the remainder of national society until quite recently, and for whom unregulated contact with outsiders can have highly deleterious consequences. In the case of forest dwellers threatened by outside contact, perhaps in the context of national development programmes, employment promotion measures in themselves may be of less importance than measures to safeguard indigenous and tribal control over natural and environmental resources and measures enabling them to exercise some control over development programmes within their areas of traditional habitation. In many other cases, indigenous and tribal peoples have experienced a greater degree of de fact integration within the national economy earning their livelihood alongside other sectors of the rural population. They may, however, have pursued farming and occupational systems in accordance with traditional practices and customs, with a separate legal status recognised for their communities under national legislation. In a number of countries, where past legislation and policies may have sought the gradual elimination of separate indigenous forms of land use and ownership, recent policies have given new recognition to indigenous communities, adopting new legislation both to protect these communities and to provide preferable treatment to them within the framework of overall rural development policies. It is factors such as these which can place the occupational situation and needs of indigenous and tribal peoples in a different category from other disadvantaged population groups. For these peoples, preferential measures in the area of employment and occupation can with difficulty be divorced from wider-ranging measures which affect all aspects of indigenous and tribal lands and livelihood; and it should be understood that such differences are likely to last for an indefinite period.

B. National extraction

36. The concept of national extraction in the 1958 instruments is not aimed at the distinctions that may be made between the citizens of the country concerned and those of another country, but covers distinctions made on the basis of a person's place of birth, ancestry or foreign origin. Distinctions made between citizens of the same country on the basis of the foreign birth or origin of some of them are one of the most evident examples. In France, the prohibition on foreigners who have been naturalised for less than five years from taking jobs in public employment that do not involve their appointment as civil servants has been abolished by law. (Endnote 61) In some countries, regulations respecting access to the public service still establish conditions concerning the length of time the person has been a national. (Endnote 62) In Sweden, surveys mentioned by the Government in its report had revealed differences in the employment rates of various categories of foreigners which might be based, in particular, on race or on national extraction; the body responsible for these matters recommended that a law prohibiting such discrimination should be enacted. (Endnote 63) In the United States, federal legislation has been amended in order to prohibit discrimination against any individual, other than an unauthorised alien, on the grounds of his or her national origin, or of his or her naturalisation in the case of a citizen or a person who has applied for citizenship. (Endnote 64) The Constitution of Haiti contains a provision to the effect that citizens are equal before the law, subject to the benefits conferred upon citizens who have never renounced their nationality. (Endnote 65) To the extent that these benefits do not directly or indirectly concern employment or occupation in the sense of the Convention, they should have no bearing on its application. In some countries, constitutional or legislative provisions establish distinctions between various categories of citizens based on factors such as national extraction, (Endnote 66) or on a series of grounds icluding, in addition to national extraction, elements such as language and religion. (Endnote 67) These distinctions are generally intended to establish a balance between communities of various origins and indeed of different races. They generally affect training and employment, particularly public employment, by reserving jobs for members of a specific group. (Endnote 68)

37. The ground of national extraction has been defined in a number of countries to include related grounds for discrimination. This is the case for language, which is recognised in many Constitutions (Endnote 69) and labour codes or special laws as a prohibited ground of discrimination and which reflects national extraction and in certain cases racial considerations. This is also the case with regard to the place of birth (Endnote 70) or the State or region of origin (Endnote 71) or again ethnic origin. (Endnote 72) In a certain number of States, nationality, in the meaning that the term can take to designate membership in one of several ethnic communities comprising the citizens of the country, or again citizenship of a federated State within the framework of a federal State, is deemed a prohibited ground of discrimination. (Endnote 73) A particular problem arises with regard to member States of the European Community, which are under the obligation to apply the principle of the freedom of establishment under article 48 of the Treaty of Rome. (Endnote 74) The exceptions envisaged under the Treaty are interpreted in a restrictive manner by the Court of Justice of the European Communities. (Endnote 75)

C. Sex

38. Distinctions based on sex include those which are made explicitly or implicitly, to the disadvantage of one sex or the other. While in the great majority of cases, and particularly in cases of indirect discrimination, it would appear that distinctions based on sex are detrimental to women, several countries emphasised in their reports that the protection provided against discrimination applies equally to either sex under the terms of the legislation itself or its interpretation in the courts. In general, provisions to prohibit discrimination are drawn up in sufficiently neutral terms for their application to both men and women not to raise any particular difficulties. Some countries have specified in the legislation they have adopted that provisions respecting discrimination on the basis of sex to the detriment of women are to be interpreted as applying equally to the treatment of men and shall have effect for that purpose, with such modifications as are necessary. (Endnote 76) In a country that has ratified the Convention, a court found an airline company guilty of sex discrimination regarding recruitment, an offence under the Penal Code, for rejecting the application of a man for a job as a flight attendant, telling him that it was seeking only women staff. (Endnote 77) In the United States, the Supreme Court found that restricting admissions to a nursing school to women was illegal. (Endnote 78) These types of discrimination are subject to the supervision of the courts in order to ascertain that the intended objective of the measure does not reflect archaic and stereotyped concepts with regard to the respective roles of men and women. Such archaic and stereotyped concepts, which differ according to country, culture and customs, are at the origin of types of discrimination based on sex and all lead to the same result: the nullification or impairment of equality of opportunity and treatment. Occupational segregation according to sex, which leads to the concentration of men and women in different occupations and sectors of activiy, is to a large extent the product of these archaic and stereotyped concepts. (Endnote 79)

39. The principle of equality between men and women is enshrined in a very large number of constitutional texts (Endnote 80) which provide either for equality of rights without discrimination on the basis of sex, or prohibit discrimination based on such grounds. The principle is also enshrined more specifically, with regard to employment and occupation, in labour codes (Endnote 81) and in special legislative measures (Endnote 82) which deal with access to employment and, less frequently, access to occupation. The Committee of Experts has emphasised that legislation on non-discrimination between the sexes is an important step in a policy of equality of opportunity and treatment in employment and occupation. (Endnote 83)

Civil and marital status, family situation, pregnancy and confinement

40. Many provisions respecting equality of opportunity and treatment refer only, as is the case of the Convention, to the grounds of sex, without providing a definition of what should be understood by discrimination on the basis of sex. In several countries, it is specified that discrimination on the basis of sex also includes acts of discrimination on the basis of civil status, marital status (Endnote 84) or family status, pregnancy or confinement. (Endnote 85) The term "marital status", due to its reference to marriage, may leave a number of doubts concerning the scope of this ground of illegal discrimination. A number of provisions indicate that the expression "maritial status" refers to the status or situation of a person who is single, married, married but living separately and apart from the spouse, divorced, widowed or the de facto spouse of another person. (Endnote 86) In order to avoid any doubts in this matter, some legislative provisions include references to marital status and to family ties other than marriage. Some laws qualify acts of discrimination on the basis of marital or family status as acts of indirect discrimination or mention them as illustrations of acts of indirect discrimination. (Endnote 87)

41. The discriminatory nature of distinctions on the basis of pregnancy, confinement and related medical conditions (Endnote 88) is demonstrated by the fact that up to the present time they have only affected women. The situations linked to civil status, in contrast to those related to pregnancy and confinement, are not in themselves discriminatory. They may amount to unjustifiable grounds irrespective of the sex of the person affected, as illustrated in cases where a celibacy clause is imposed on all employees. The basis of the discrimination lies less in the marital status of the individual than on the fact that certain requirements (celibacy, marriage, etc.) are imposed only on individuals of one sex. The Committee of Experts considers that distinctions based on civil status are discriminatory by nature under the terms of the Convention to the extent that they result in a requirement or condition being imposed on an individual of a particular sex that would not be imposed on an individual of the other sex. The same applies in cases of requirements or conditions that are imposed equally on persons of both sexes, such as requirements concerning height or weight which are the same for both men and women, but are such that the percentage of persons able to fulfil those conditions differs widely according to their sex.

42. Since the previous General Survey, the Committee of Experts has noted with satisfaction that in several countries' provisions, which when applied gave rise to discrimination on the basis of marital or family status, have been repealed. In the Central African Republic, the Government stated that the Decree of 17 January 1981 issuing the special conditions of service of the Central African Police Force had repealed the provision of a Decree of 1968 which prohibited women police officers from marrying and which made pregnancy grounds for terminating the employment relationship. (Endnote 89) In Malta, Act No. XI of 1981 amended the Conditions of Employment (Regulation) Act of 1952 so as to protect women workers against decisions to terminate their employment on the basis of marriage or maternity. (Endnote 90) The Committee of Experts also noted that the Swiss Federal Act of 28 June 1972 amended the provisions of the Act of 1927 on the conditions of employment of the civil service concerning termination of employment in the event of the marriage of women public servants; an Ordinance, dated 20 December 1972, also repealed the clause in the regulations for employees concerning the termination of employment of women in the event of marriage. (Endnote 91) The Committee of Experts has also noted with satisfaction that in Spain, section (2)(3) of the Decree of 20 August 1970, making a married woman's acceptance of employment subject to permission from her husband, was repealed by Act No. 16 of 8 April 1976 on labour relations. Section (10)(2) of this Act specifies that all women, regardless of civil status, can enter into contracts of employment of any kind and exercise, in the same way as men, all rights in relation to their professional activity. (Endnote 92)

43. A number of provisions respecting civil status and maternity however remain in force both in countries that have ratified the Convention and in countries that have not yet ratified it. (Endnote 93) In its reply to the questionnaire of the Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers, (Endnote 94) one government indicated that married women may be recruited into the educational service and that a female teacher may continue her employment after marriage. Nevertheless, if the Minister of Education should consider that the number of candidates fulfilling the conditions required by the educational service exceeds the demand, he or she may give instructions for priority to be given in recruitment to men, unmarried women and women who are heads of families. Furthermore, in the event of staff reductions, the Minister may give instructions that, on the decision of the Head of State, a fixed number or proportion of female married teachers (but not heads of families) may be excluded from the educational service. In Zaire a provision of the public service regulations obliges married women to obtain written authorisation from their spouse in order to be employed in the public service. (Endnote 95) In Ecuador, the regulations respecting co-operative societies provide that married women must obtain authorisation from their husbands in order to become members of co-operatives. (Endnote 96) In Brazil, the husband or parent shall be entitled to bring an action for the cancellation of a contract of employment if the continuance thereof would constitute a threat to family ties or would be manifestly dangerous to the woman on account of her special situation. (Endnote 97)

44. A number of countries reported that protection against discrimination on the basis of sex also includes acts of indirect discrimination. (Endnote 98) The definitions given to acts of indirect discrimination are not uniform and are generally of an illustrative nature. In certain provisions, the indirect nature of discrimination stems from the fact that the sex of the individual is not the direct basis of discrimination, although it is based indirectly on grounds such as, marital status, maternity, pregnancy, etc. (Endnote 99) In other cases, the indirect nature of discrimination refers not to its grounds, but to the circumstances in which it originates. Discrimination occurring through pre-selection systems or job offers are regarded as indirect discrimination in Italy. (Endnote 100) In some countries the expression "indirect discrimination" is not mentioned in the legislation, which, however, prohibits certain practices that could be defined as forms of indirect discrimination. In the United Kingdom, the law lays down that any person imposing a requirement or condition upon women that is equally required of men, but that is such that the proportion of women able to fulfil it is considerably smaller than the proportion of men who are able to do so, commits a discriminatory act under the law. (Endnote 101) Certain requirements that appear to be neutral and which apply equally to both sexes also constitute indirect discrimination: this is the case with requirements concerning age, minimum height and weight. (Endnote 102) One government indicated in its report (Endnote 103) that regulations establishing a minimum height or weight for certain categories of employees have been found to be discriminatory since their application would lead to the exclusion of approximately 40 per cent of the female population. The authority responsible for setting these requirements was not able to demonstrate that minimum weight and height were related to the satisfactory performance of the work.

Sexual harassment

45. Some governments and employers' and workers' organisations have turned their attention to one particular form of discrimination on the basis of sex, namely the types of behaviour covered by the terms "sexual harassment" or "unsolicited sexual attention". (Endnote 104) These include insults, remarks, jokes, insinuations and inappropriate comments on a person's dress, physique, age, family situation, etc.; a condescending or paternalistic attitude undermining dignity; unwelcome invitations or requests that are implicit or explicit, whether or not accompanied by threats; lascivious looks or other gestures associated with sexuality; unnecessary physical contact, such as touching, caresses, pinching or assault. In order to be qualified as sexual harassment, an act of this type must, in addition, show one of the following characteristics: be justly perceived as a condition of employment or a precondition for employment; influence decisions taken in this field, or prejudice occupational performance; humiliate, insult or intimidate the person suffering from such acts. Any act, the unwanted nature of which could not be mistaken by its author, shall be deemed sexual harassment. Sexual harassment is a potential threat to workers and the enterprise. Not only does it bring into question individual integrity and the well-being of workers, but it is also contrary to the objectives of the employer since it weakens the bases upon which industrial relations are built and hinders productivity. A survey conducted in 1983 in Canada revealed that many persons had been subject to unwanted sexual attention at the workplace or in service sectors: on the order of 1,200,000 women and 300,000 men considered that they had been sexually harassed at some time during their occupational life; (Endnote 105) young women, unmarried women and women belonging to a household where the income was below average had stated more frequently than other categories that they had been sexually harassed. A survey conducted in the same year in Peru, in an industrial setting (fish conserving), demonstrates the difficulties involved in obtaining information on this subject, which "belongs to the world of silence and fear, even though it is an ever-present and hidden threat to security (of employment) and to the reputation of the women who have been the subject of sexual advances". (Endnote 106) Although the information compiled is unpleasant, this type of survey should be encouraged since it would appear that recognition of the existence of this phenomenon plays an important role in its elimination. This is one of the conclusions of a seminar on "Women and the Law", held in Malaysia; another proposal to come out of the seminar is that, until services are introduced in order to deal with these questions and adequate provisions are adopted, cases of sexual harassment should be pursued in the courts under terms that already exist such as "assault", "affront to one's honour" and "rape" within the meaning of the Penal Code. (Endnote 107) The difficulty of using the provisions of penal legislation lies in how to prove this type of act.

46. In several countries legislative provisions have been adopted in this connection or are in the process of adoption. In Australia, one of the objectives of the Sex Discrimination Act is to eliminate, in so far as possible, discrimination involving sexual harassment in the workplace and in teaching institutions. The Act gives a definition of the types of conduct considered to constitute sexual harassment. (Endnote 108) In Canada, sexual harassment is deemed to be harassment on the basis of an illegal distinction, constituting a discriminatory act. (Endnote 109) A general prohibition of sexual harassment is laid down in the Labour Code, (Endnote 110) which gives the following definition: any conduct, comment, gesture or contact of a sexual nature that is likely to cause offence or humiliation to any employee, or that might, on reasonable grounds, be perceived by any employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion. The Code also lays down the right of every employee to employment free of sexual harassment and imposes a duty on every employer to make reasonable efforts to maintain that right. In the United States, the legislation of several states also prohibits sexual harassment, which is deemed by some laws to be a violation of civil rights. (Endnote 111) In 1980, the Equal Employment Opportunity Commission adopted guide-lines on sexual harassment indicating that such behaviour constituted a violation of section 703 of Title VII of the Civil Rights Act of 1964 and defining the responsibilities of employers in regard to its prevention, which was considered to be the best instrument for eliminating this type of behaviour. (Endnote 112) In New Zealand, the Human Rights Commission has adopted an analogous solution by assimilating sexual harassment to discrimination on the basis of sex. (Endnote 113) In Peru, the law defines as hostile acts by the employer or his or her representatives acts which are contrary to morality, sexual harassment and any acts representing dishonest behaviour affecting the dignity of the worker. (Endnote 114) In Israel, the new Law on equality of opportunity between men and women contains a provision forbidding sexual harassment. In the Philippines, the National Commission on Women proposed that studies be undertaken in order to define the elements constituting work-related sexual harassment with the aim of amending legislation in this area. (Endnote 115) In Finland, the Equality Ombudsman must submit a report to Parliament which shall, inter alia, publicise the protection afforded to women against sexual harassment. In Sweden, the Ombudsman has requested that the legislation respecting equal opportunities be amended so that it may apply directly to cases of sexual harassment and has commissioned a study on this matter. (Endnote 116)

D. Religion

47. The Convention aims to provide protection against discrimination, on the basis of religion, affecting employment and occupation, which is often the consequence of a lack of religious freedom or of intolerance, and in some cases of the existence of a State religion. It is therefore necessary to examine the general provisions adopted for the elimination of forms of intolerance and discrimination based on religion or belief and their effects on the application of the Convention. Religious considerations as the basis of distinctions in occupational life may vary in nature. The Committee of Experts already noted in a previous General Survey (Endnote 117) a number of situations that may lead to discrimination. In the first place, one type of problem lies in the coexistence of communities of different religions which may give rise to similar problems to those encountered in multi-racial or multi-national communities. In other cases, discriminatory acts in employment derive more specifically from an attitude of intolerance towards persons who profess a particular religion or particular religious beliefs, or who profess no religion. The Committee noted that where religious considerations hold a large place in public and social life, and in particular where one religion has been established as the religion of the State, care has to be taken that this will not lead to consequences as regards employment and occupation. (Endnote 118) The available information illustrates that other issues have been added to the problems already considered by the Committee. The constraints of a trade or an occupation may in certain circumstances hinder the free exercise of a religious practice. This may happen in cases where a religion prohibits work on a day different from the day of rest established by law or from the day on which the enterprise is closed, or in cases where the exercise of a religion requires a particular kind of clothing. This issue affects both the right to exercise one's own faith or creed and also the right to act in accordance with it. Another question arises with regard to oaths taken when taking up a specific job, position or type of employment. Finally, the question also arises as to whether religion can constitute a qualification that may be required in good faith for the exercise of a job or an occupation. This last question will be dealt with in greater detail in the section concerning the qualifications required for a particular job or occupation. (Endnote 119)

48. A large number of constitutional provisions and fundamental laws give statutory effect to the principle of non-discrimination on grounds of religious attitudes. (Endnote 120) A number of provisions make reference to freedom of religion, freedom of conscience, freedom of thought and belief. (Endnote 121) In some countries, the constitutional provisions authorise the practice of a number of religions, which are referred to by name, which could be interpreted as a prohibition on believing or practising a religion, the exercise of which is not guaranteed by the Constitution, or as a prohibition of atheism. (Endnote 122) Problems may arise with regard to access to certain areas of employment in countries that recognise one religion as the State religion (Endnote 123) and in countries founded on a doctrine implying atheism. Generally provisions that recognise a religion are supplemented by a prohibition of discrimination on grounds of religion or by a statement of the principal of the equality of citizens before the law without distinction on the basis of religion. (Endnote 124) In other countries, the Constitution prohibits the adoption of laws concerning the establishment of a particular religion or forbidding the exercise of any religion. (Endnote 125) In some countries constitutional provisions or labour laws give more specific guarantees concerning the right to work and to satisfactory conditions of work without discrimination on the basis of religion or belief (Endnote 126) or provide that an individual shall not be prevented from entering public employment on grounds of religion or belief. (Endnote 127) In a number of countries, the penal legislation contains provisions prohibiting and punishing the refusal of a service or a right to an individual or a group on the basis of their religion or belief, or incitement to others to commit such acts. (Endnote 128) The same applies to labour codes and legislation applying specifically to the world of work. (Endnote 129) In some countries, collective agreements also include these guarantees. (Endnote 130)

49. The large number of constitutional, legislative and contractual provisions providing protection against discrimination on the basis of religion or guaranteeing freedom of religion, conscience, thought and belief should not be allowed to obscure the difficulties which may arise with regard to their application. The Special Rapporteur to the Commission on Human Rights of the UN Economic and Social Council has noted that, "The existence, both necessary and desirable, in Constitutions or other texts of national legislation of provisions establishing the principle of freedom of religion and belief does not, however, constitute an absolute guarantee of respect for this principle, and there are unfortunately many instances of persecution or other manifestations of religious intolerance, despite the adoption of such legislative provisions." (Endnote 131)

50. The Committee of Experts has had occasion to express its profound concern at the discrimination in employment, occupation and training practised in respect of persons belonging to the Baha'i community, the free-masons and organisations whose constitutions imply atheism in the Islamic Republic of Iran. (Endnote 132) Discrimination of this type affects access to employment and training and conditions of employment. In practical terms it means the termination of employment in the public sector (Endnote 133) and in the private sector, with the Government requiring employers to dismiss the employees concerned; it also means prohibition to register in schools, higher education institutes and universities and exclusion from these institutions. Retired public officials have had their pensions withdrawn because of their adhesion to their faith and some public officials have had to reimburse the State the amount of salaries that they had received during their careers as officials. Such discriminatory acts cease to apply if the members of these groups renounce their faith and publically give allegiance to the faith professed by the majority. In Pakistan, an Ordinance amending the Penal Code prohibits the followers of a certain sect from having access to education and public employment. (Endnote 134) Students belonging to this sect may be expelled from university. In Egypt, a Presidential order forbids any person who is convinced that he or she adheres to principles that are contrary, or that are a threat, to divine laws, from holding high office in the public administration or the public sector, from publishing articles in periodicals, or from exercising an activity in any information media or engaging in any other work that may influence public opinion. (Endnote 135) In other countries, religious movements and sects have been prohibited by the authorities and their members made liable to penal sanctions as a direct result of their membership. (Endnote 136) The consequences of these prohibitions of religious movements or sects on employment and occupation need close examination in order to determine whether in practice they result in the types of discrimination covered by the Convention.

51. In the great majority of cases, discrimination on the basis of religion is not of an institutionalised nature. In a number of cases particularly arduous and heavy work may be reserved for members in a religious minority; in other cases membership in a religious community may affect promotion opportunities and social and occupational success. Finally, in some cases, even the possibility of finding a job is compromised on grounds of religion, even though constitutional texts guarantee equality or forbid discrimination on the basis of religion. (Endnote 137)

52. The protection afforded by the Convention with regard to equality of opportunity and treatment without discrimination on the basis of religion would be void of substance if it did not include all the aspects equally, or at the very least, the most important aspects of religious practice. In a country that has not ratified the Convention, the provisions forbidding discrimination, particularly in employment, have been amended as follows: "The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accomodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." (Endnote 138) In the Netherlands, the Sunday Observance Act contains provisions ensuring that there are no impediments to the observance of Sunday and certain Christian holidays, although there is no regulation respecting non-Christian days of rest and holidays. The Supreme Court ruled that while non-Christian religious holidays could not be regarded as equivalent to those in the Christian calendar, it would be unreasonable for an employer to demand the presence of an employee at work if the latter had given notice sufficiently in advance for requesting a day's holiday in order to celebrate a religious holiday that was important to him or her, unless the work of the enterprise would be seriously disrupted. (Endnote 139) In another country the Supreme Court has ruled that the Sunday Act, which made Sunday a day of rest, was null and void since it violated the right to freedom of religion. (Endnote 140) One of the principal objectives of the recommendations made by bodies responsible for implementing non-discrimination policy and policy respecting religious minorities is to ensure that the members of these minorities enjoy in practice the same opportunities to celebrate their religious holidays as traditional Christians. Furthermore, the Supreme Court found that the Canadian Human Rights Act prohibits both discrimination based directly on religion and also systemic or de facto discrimination, that is unfavourable treatment affecting a person due to a characteristic associated with religion, such as being unable to work on the sabbath. (Endnote 141) The Government also referred to the decision of the Inquiries Office of a Province in favour of three persons belonging to the Sikh religion to whom employment had been refused because they were bearded and wore turbans; the Office decided that they had been the victims of discrimination on the basis of their religious faith. (Endnote 142) In the Syrian Arab Republic, state employees have recently obtained the right to a period of pilgrimage leave during their career. (Endnote 143)

53. In a number of countries, access to public employment or to a particular occupation may be subject to a statement or an oath using terms that expressly refer to a particular religion or the content of which is contrary to the religious beliefs of the applicants. In the Federal Republic of Germany, an administrative tribunal confirmed the rejection of an applicant for employment in the preparatory teaching service who had refused on religious grounds to sign a prepared statement regarding her loyalty to the Constitution, although she was prepared to give assurances in a different form that she would fulfil her functions in accordance with the provisions of the Constitution of the State respecting education. The tribunal indicated that there was no reason to suppose that the applicant was opposed to the free democratic basic order in the sense of the Constitution, but it confirmed her rejection on the grounds that the Federal Constitutional Court had ruled that the State should be able to rely on a body of officials of unconditional loyalty for the execution of its tasks. (Endnote 144) In Finland, section 9 of the Freedom of Religion Act used to provide that a person who is not a member of a religious community or whose religious denomination does not permit the swearing of oaths, shall give a declaration on his honour and conscience. The Government has indicated that in practice, the obligation to give a religious oath applies to the majority of citizens, since more than 90 per cent of the population are members of a religious community which accepts the concept of an oath. These provisions have been amended. (Endnote 145) In Belize, article 11(4) of the Constitution provides that a person shall not be compelled to take any oath that is contrary to his religion or belief or to take any oath in a way that is contrary to his religion or belief. A similar provision is included in the Constitution of Mauritius. (Endnote 146)

E. Social origin

54. During the preparatory work of the Convention, social origin was mainly envisaged in terms of social mobility, defined as the possibility for an individual to pass from one class or social category to another. The problem of discrimination on the basis of social origin arises when an individual's membership in a class, a socio-occupational category or a caste determines his or her occupational future either by denying him or her certain jobs or activities or, on the contrary, by assigning him or her to certain jobs. Although such situations are rarely encountered in so pronounced a form at the present time, prejudices and preferences based on social origin may still persist even where rigid stratification has disappeared. Even in open societies, where social mobility is widespread, a number of phenomena continue to impede complete equality of opportunity for various social categories despite measures adopted to increase training opportunities for certain social categories. The information brought to the attention of the Committee of Experts has rarely concerned cases of discrimination on grounds of social origin, which is frequently not covered in the same way as other grounds of discrimination by such numerous and generally applicable specific constitutional or legislative provisions (Endnote 147) This may be due to the fact that the measures to be taken cover a whole range of approaches lying within the competence of various sectors of government activity, the co-ordination of which is frequently a sensitive issue. It should be noted that, even if this is taken into consideration, the implementation of the Convention cannot be deemed fully satisfactory, since Article 2 lays down the obligation of declaring a national policy, one of the objectives of which is to eliminate any discrimination in employment and occupation on the basis of social origin.

55. In general, the legislative provisions that have been adopted are intended to remedy discrimination on this basis by establishing conditions of equality of opportunity and treatment for a number of categories of the population that are deemed to be underprivileged. In France, a report by an advisory body in the economic and social field reveals that overall measures favouring employment and training are of very little benefit to the most underprivileged social categories. (Endnote 148) In order to combat insecurity, which may be defined as a lack of one or more aspects of security, and particularly employment, which enable individuals and families to fulfil their occupational, family and social obligations and to enjoy their fundamental rights, the absence of which results in "great poverty", it has been proposed to launch a national plan based simultaneously on employment and training, a minimum income, housing and health. Improving access to basic training for children coming from the most underprivileged backgrounds is one of the aspects of the measures to combat great poverty. In India, the characteristics arising out of untouchability were abolished by article 17 of the Constitution, and by an Act adopted in 1955 respecting offences regarding untouchability. In order to strengthen administrative machinery and abolish untouchability in all its forms in all spheres of society, amendments to the 1955 Act were adopted in 1976. (Endnote 149) In addition, many programmes aimed at members of recognised castes and tribes and at persons in underprivileged classes have been planned together with recommendations promoting the recruitment, employment and training of these groups. In 1982, a Commission set up to investigate the conditions of the socially and educationally disadvantaged recommended a series of measures aimed at encouraging access to employment and education; (Endnote 150) the establishment of a proportion of jobs in the public service and in teaching establishments; an increase in the upper age limit for recruitment of mebers of these groups; keeping open unfilled posts allocated under the quota for a period of three years; etc. These recommendations were submitted to Parliament. In Japan, various provisions have been adopted in order to resolve the problem of a minority of the population living in specific areas (Buraku) which is subject to discriminatory practices concerning its social position. (Endnote 151) A Law on measures concerning regional improvement projects was adopted on 31 March 1987. The Law includes new aspects which are a product of the results obtained from 13 years of applying the previous legislation on special measures concerning integration projects and as a result of a re-examination of the provisions that were adopted previously in the light of the problems that remain to be solved, namely: the adoption by the central administration of detailed directives to regional administrations; changes of attitude of regional and local administrative units with regard to this issue; changes in the mentality of the members of the community; etc. The regional improvement projects (Dowa projects) are intended, inter alia, to encourage employment and promote activities in the field of education and culture.

56. Legislative provisions and regulations which may have the effect of introducing discrimination in employment and occupation on the basis of social origin are infrequent. They may consist of preferences afforded to individuals on the basis of their social origin or the merits of their parents in order to obtain a job or receive training, (Endnote 152) or in exclusion from certain jobs or training courses on the same grounds.

F. Political opinion

57. Within the context of the policy to promote equality of opportunity and treatment, the Convention provides for the elimination of any discrimination on the basis of political opinion. The Committee of Experts has indicated that, in protecting workers against discrimination with regard to employment and occupation on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles -- since the protection of opinions which are neither expressed nor demonstrated would be pointless. (Endnote 153) Regarding the nature of the opinions expressed, the Committee noted that "the protection afforded by the Convention is not limited to differences of opinion within the framework of established principles. Therefore, even if certain doctrines are aimed at fundamental changes in the institutions of the State, this does not constitute a reason for considering their propagation beyond the protection of the Convention, in the absence of the use or advocacy of violent methods to bring about that result." (Endnote 154) The Committee of Experts recalls the opinion expressed by a Commission of Inquiry appointed under article 26 of the Constitution of the ILO that "the protection of freedom of expression is aimed not merely at the individual's intellectual satisfaction at being able to speak his mind, but rather -- and especially as regards the expression of political opinions -- at giving him an opportunity seek to influence decisions in the political, economic and social life of his society. For his political views to have an impact, the individual generally acts in conjunction with others. Political organisations and parties constitute a framework within which the members seek to secure wider acceptance of their opinions. To be meaningful, the protection of political opinions must therefore extend to their collective advocacy within such entities. Measures taken against a person by reference to the aims of an organisation or party to which he belongs imply that he must not associate himself with those aims, and accordingly restrict his freedom to manifest his opinions." (Endnote 155)

58. Many constitutional and legislative provisions prohibit discrimination on the basis of political opinion either in general terms (Endnote 156) or more specifically in the fields of training, employment and occupation. (Endnote 157) Most of these provisions make reference, as unlawful grounds of discrimination, to political opinion or beliefs, while others refer to political affiliation, and some specify that these expressions imply belonging to a political group or party of one's choice, the fact of participating actively in a political association or maintaining relations with members of a political association, candidacy in elections and the act of expressing one's opinion on the way in which society and government operate or should operate. In some countries that have adopted constitutional or legislative provisions or regulations prohibiting discrimination on a number of grounds enumerated in a restrictive list, political opinion has been omitted. (Endnote 158) In the absence of explicit reference to political opinion in the provisions respecting equality or opportunity and treatment, the Committee of Experts has requested information on the measures taken to eliminate discrimination on the basis of political opinion. (Endnote 159) The Committee of Experts has noted with satisfaction that the new General Labour Act in one of these countries makes reference to political opinion among the grounds of discrimination in respect of which it prohibits discrimination in employment and occupation. (Endnote 160) A Government (Endnote 161) indicated that the ground of political opinion was included in the International Covenant on Economic, Social and Cultural Rights and in the International Covenant on Civil and Political Rights, which had both been ratified by the State in question, and that the complete title of the Act forbidding discrimination made express reference to these two Covenants, thus conferring a broad mandate on the bodies responsible for ensuring the application of the Act. Where provisions are adopted in order to give effect to the princile contained in the Convention, they should include all the grounds of discrimination laid down in Article 1, paragraph 1(a), of the Convention.

59. Widespread recognition is given in law to the prohibition of discrimination in employment and occupation on the basis of political opinion. Since the last General Survey, the Committee of Experts has had occasion to note that in several countries certain provisions that are contrary to the requirements of the Convention have been repealed. In Argentina, Act No. 17401 of 22 August 1967, which excluded from public office or employment persons classed as being or having been engaged in activities motivated by certain political opinions, was repealed by Act No. 20509 of 27 March 1973. (Endnote 162) The Act of 26 March 1975 (which came into force on 1 July 1975) repealed, in sections 46(1)(e) and 53(1)(c) of the Labour Code of Czechoslovakia, the references which had been introduced in 1969 concerning dismissal in cases where a worker has engaged in an activity "calculated to cause a breach of the Socialist Social Order" and was not "sufficiently worthy of confidence to occupy his function or post". (Endnote 163) In Egypt, Presidential Order No. 29 of 27 September 1975 eliminated the compulsory membership of journalists in the Arab Socialist Alliance. (Endnote 164) In Yugoslavia, the reference to "moral and political suitability" as a condition for holding certain jobs was ruled unconstitutional by the meeting of Presidents of the Constitutional Courts on 19 December 1979, and the reference is to be gradually eliminated from legislation and from job offers. (Endnote 165) In Greece, section 18 of Act No. 1400 of 1983 repealed the provisions of earlier legislation respecting the obligation for public administrations and public societies and organisations to keep individual files on each staff member containing information on their political opinions and activities and their loyalty to the established régime. The Act also provides for the destruction of such files and of any material making it possible to evaluate the political opinions of the persons concerned. (Endnote 166)

60. However, there remain numerous problems. In a previous General Survey, the Committee of Experts noted that "one of the essential traits of this type of discrimination is that it is most likely to be due to measures taken by the State or the public authorities. Its effects may be felt in the public services, but are not confined thereto; moreover, in many modern economies the distinction between the public and private sector has become blurred or has disappeared completely." (Endnote 167) In some countries, the laws and regulations prohibit the employment of persons on the grounds of their membership in certain political parties, both in the public sector and in a number of jobs in the private sector, (Endnote 168) or exclude persons from the protection afforded by the laws enshrining the principle of equality, on the grounds of their membership in a political party. (Endnote 169) In other countries, despite the existence of constitutional or legislative provisions respecting equality of opportunity and treatment without discrimination, a number of texts indicate that with regard to employment in a large number of jobs in all sectors of activity, account is to be taken of political and socio-political attitudes, of civic commitment and moral and political qualities. (Endnote 170) The same criteria are in some cases taken into consideration with regard to access to education and training. (Endnote 171) The Committee noted, in a country that has ratified the Convention, that political criteria are considered to be essential in access to a broad range of senior management positions in the economy, that access to all such functions is monitored by a political party and that employees may be dismissed for failing to fulfil political requirements, even in cases where their work performance has been beyond reproach. (Endnote 172) It recalled that in cases in which one of the criteria cited by the Convention is taken into consideration in determining the inherent requirements of a job, an objective reappraisal should be made in order to determine whether these prerequisites are really justified by the requirements of the job. (Endnote 173)

61. In the public sector, it would appear from the available information that in many countries special provisions lay down regulations respecting the rights and duties of public servants (Endnote 174) and for various types of public sector employees and employees in public enterprises. In some countries, restrictions are imposed on public servants and State employees respecting the exercise of their political rights and the Committee of Experts has requested the governments concerned to supply information on the scope of these restrictions in order to ensure observance of the Convention in this respect. (Endnote 175) The legislation in certain countries states that public servants shall exercise their functions faithfully or that they may be dismissed if they do not faithfully fulfil their obligations or lose the trust necessary for their position. In general, the concept of loyalty is interpreted in practice as requiring public officials in service to conscientiously fulfil their obligations and observe the neutrality of the public service and, outside their employment, to exercise the discretion that is required by their position when expressing their political opinions. In one country, each public servant's obligation to exercise discretion is evaluated in consideration of the nature of his or her position and rank in the hierarchy and the circumstances in which he or she expresses his or her opinions. (Endnote 176) The extent of the obligation of loyalty varies considerably from country to country, from, at one end of the spectrum, the requirement of a passive attitude and of abstention, implying an assumption of loyalty by all officials, to a more active attitude involving constant demonstration of loyalty. (Endnote 177) In cases where the obligation of faithfulness is not written into law, the Courts have often found that an official is subject to an obligation to exercise discretion which does not prevent him or her from using certain media and techniques of expression, but which prohibits him or her from employing his or her positin as an instrument for action or propaganda. In some countries, the political activities of certain categories of officials are subject to restrictions which may, according to the rank of the official, extend to the prohibition of any political activity, irrespective of the party involved. (Endnote 178) These restrictions are imposed with a view to maintaining the reputation of the public service for political impartiality and in most cases do not concern the application of the Convention. (Endnote 179) The question arises in practice, however, of ascertaining whether such restrictions lead to discrimination on the basis of political opinion for the categories of workers concerned.

62. A number of countries reported that, although state employees were generally protected against discrimination on grounds of political opinion, certain individuals exercising decision-making functions who were appointed without going through a competition for their jobs may be chosen on the basis of their political opinions. In the United States, the Government indicates in its report that a newly elected President or State Governor may appoint new people on the basis of their political affiliation to most of the major policy-making positions in the administration. In Colombia, the Constitution formerly provided for a system of parity between the two main political parties with regard to senior posts in the public administration; the Committee of Experts requested the Government to supply information concerning the number and nature of the posts considered by the Government to be subject to "the power of free appointment and dismissal". (Endnote 180) In France, the conditions of employment of the public service provide for the existence of senior posts, of which a restrictive list is given in a decree, to which appointments are left to the discretion of the Government. The Supreme Administrative Tribunal has consistently ruled that the persons employed in these posts could at any time be dismissed for political reasons, even in the absence of an offence that would justify a disciplinary measure. (Endnote 181)

63. In some countries, there is a discernible trend to bring industrial relations in the public service more into line with those of the private sector. (Endnote 182) In Italy, the Framework Act on Public Employment of 29 March 1983 extended certain provisions of Act No. 300 of 20 May 1970 to public servants, and in particular the guarantee of freedom of opinion and free expression of thoughts, the prohibition on employers making inquiries concerning political opinions and the nullification of any agreement or act resulting in discrimination on the basis of political opinion. In Norway, with the exception of a small percentage of public servants (Beamte), state employees are regulated by the provisions of the Act of 4 February 1977 respecting workers' protection and the working environment, which applies to employees in the private sector. In Sweden, the provisions of the labour legislation are applicable to employment relationships in the public service and few residual public law regulations remain in force. (Endnote 183)

Subsection 2. Other grounds of discrimination

64. Article 1, paragraph 1(b), of the Convention, and the corresponding paragraph of the Recommendation, provide that for the purposes of their application, in addition to the seven grounds of discrimination laid down in Article 1, paragraph 1(a), "such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (...) may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies", within the framework of the national policy designed to promote equality of opportunity and treatment in respect of employment and occupation. The information supplied by governments in their reports does not allow conclusions to be drawn concerning the extent of consultations with employers' and workers' organisations or other appropriate bodies, or even whether they have taken place. It may be inferred, however, from the available legislative provisions that some specialised bodies, set up to ensure the implementation of the national policy of equality of opportunity and treatment, enjoy advisory status regarding any proposed legislation on these matters or that their competence extends further and that they are empowered to make proposals or intervene in parliamentary procedures, etc. In several cases, the representatives of employers' and workers' organisations participate in their own areas in the activities of these specialised bodies or are associated in various ways with their work. (Endnote 184) The participation of employers' and workers' organisations in the determination of grounds of discrimination other than those expressly referred to in the 1958 instruments is of particular importance since it provides an additional guarantee of the acceptance and implementation of the policy.

65. In view of the above, it would appear from an examination of the reports that in a large number of countries grounds of discrimination other than those set forth in Article 1, paragraph 1(a), of the Convention have been included in constitutional and legislative provisions and in regulations intended to eliminate discrimination in employment and occupation. Grounds such as language, age, disability, membership or non-membership in a trade union, which were envisaged during the preparatory work for the 1958 instruments, were not included in the final version of Article 1, paragraph 1(a). A number of other grounds, such as pregnancy and maternity, (Endnote 185) have been deemed to be already partially or totally covered by the grounds set out in the above Article. Others, such as age, disablement, family responsibilities (Endnote 186) were included in Article 5, paragraph 2, as special measures of protection and assistance not deemed to be discriminatory. To these have been added grounds such as a person's criminal indictment or conviction or criminal records, (Endnote 187) convictions that have been pardoned, (Endnote 188) educational level, (Endnote 189) place of birth, legitimacy of birth, (Endnote 190) sexual orientation, (Endnote 191) physical or mental state of health, medical history, family relationship with other workers in the enterprise, (Endnote 192) accent, (Endnote 193) physical appearance, status regarding public assistance, (Endnote 194) atypical hereditary cellular or blood trait, (Endnote 195) etc.

66. Among the grounds of discrimination determined by various countries, some partially cover one or more grounds set forth in Article 1, paragraph 1(a), of the Convention. (Endnote 196) Other grounds, such as height and weight, (Endnote 197) may give rise to indirect discrimination on the basis of sex, (Endnote 198) although they may also serve as the basis of other types of discrimination that are related in certain ways to physical appearance, in the case of persons who are small or corpulent. (Endnote 199) In Belgium, a body set up to ensure the application of the non-discrimination policy reported, with regard to physical criteria used for recruitment or promotion, that these criteria could lead to discrimination. The body considered that when account is given to criteria connected with physical characteristics, this should be strictly justified by the nature of the general tasks involved in the particular job, that the justification should be of a technical nature, and that it should take into account existing modern technical means that could facilitate the work involved. (Endnote 200) Physical characteristics which would be used only occasionally in the job in question could not be used as criteria for recruitment or promotion.

67. Since the last General Survey, two Conventions accompanied by corresponding Recommendations, have been adopted by the International Labour Conference; one on workers with family responsibilities and the other concerning the vocational rehabilitation and employment of disabled persons. These instruments are aimed at the elimination of grounds of discrimination that were not explicitly set forth in Article 1, paragraph 1(a), of Convention No. 111, but which had, in several countries, been the subject of provisions adopted within the framework of the national policy set forth in Article 2 of the Convention.

Workers with family responsibilities

68. The objective of the Workers with Family Responsibilities Convention, 1981 (No. 156), is to create effective equality of opportunity and treatment for men and women workers with family responsibilities, and between these and other workers. (Endnote 201) The Convention provides that each State shall, among the objectives of a national policy of equality of opportunity and treatment, aim to enable persons with family responsibilities to be employed without being subject to discrimination (Endnote 202) and, to the extent possible, without conflict between their employment and family responsibilities. Measures compatible with national conditions and possibilities shall be taken in order to enable workers with family responsibilities to exercise free choice of employment and to take account of their needs in terms and conditions of employment and social security. Measures shall also be taken to develop or promote community services, public or private, such as child-care and family services and facilities. The Convention also provides that measures shall be taken to promote information and education which engender broader public understanding of the principle of equality of opportunity and treatment and the problems of workers with family responsibilities, as well as "a climate of opinion conducive to overcoming these problems." (Endnote 203) Measures shall also be taken to enable the workers in question to re-enter the labour force after an absence due to their family responsibilities. Finally, the Convention excludes family responsibilities, as such, from constituting a valid reason for termination of employment. The Recommendation adds a number of provisions concerning the content of the national policy recommended in the fields of training and employment, conditions of work, social services and social security. It also provides for the promotion of activities to lighten the burden deriving from family responsibilities.

Disabled persons

69. The objective of the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), and the corresponding Recommendation is the formulation, implementation and periodic review of a policy on vocational rehabilitation and employment of disabled persons, on the basis of the principle of equal opportunity between disabled workers and workers generally. (Endnote 204) For the purposes of the Convention, the term "disabled person" means an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognised physical or mental impairment. (Endnote 205) Equality of opportunity and treatment between men and women disabled workers shall be respected. Furthermore, it provides that "special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers." (Endnote 206) This provision corresponds to the principle set forth in Article 5, paragraph 2, of Convention No. 111, which provides that "other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance," may be deemed to be non-discriminatory, after consultation procedures have been followed. The 1983 Convention refers to the non-discriminatory nature of the "special measures" set forth by the 1958 instruments and emphasises their positive role in the effective implementation of the principle of equality of opportunity and treatment. In the context of the two Conventions, the concept of protection and assistance is allied to that of equality of opportunity and treatment.

State of health

70. In determining a policy to promote equality of opportunity and treatment and applying the policy, several States have been led to examine the consequences that disabilities, and by extension the past or present mental or physical state of health of a person or group of people, may have on access to and the exercise of employment and an occupation. A number of countries have adopted provisions intended to make it possible for disabled persons, and particularly disabled veterans of war, (Endnote 207) to obtain or maintain a job by means of quota systems or systems of priority employment or through opportunities to undertake training and acquire occupational skills. Furthermore, in some countries provisions intended to afford protection to disabled persons in respect of employment and occupation and to promote equality of opportunity and treatment, generally within the framework of a reasonable arrangement of the job, have been adopted for the disabled. (Endnote 208) The same is not true for a person's physical or mental state of health, which is still often considered a priori to be an essential aspect of the employment relationship. (Endnote 209) However, in several countries the automatic nature of this relationship has been re-examined and has given rise to analysis based on the relation between a person's current state of health and the normal occupational requirements for the exercise of a particular job. Consequently, assessments of aptitude for a job must be made as a function of the current state of health or of an established prognosis, and not of previous or possible future problems. With regard to an individual's medical history, provisions which made it compulsory for persons who had suffered from specific illness (mental illness, cancer, tuberculosis, etc.) to provide guarantees regarding their health have been amended or abolished by the adoption of specific provisions or through the application of general provisions. There is no requirement for persons who have not suffered from such diseases to provide guarantees regarding their future state of health.

71. A similar problem arises with regard to carriers of the Acquired Immune Deficiency Syndrome (AIDS) virus: provisions have been adopted to forbid AIDS diagnosis tests in connection with recruitment (Endnote 210) and to maintain confidential the results of tests that may be undertaken for the protection of the public health. (Endnote 211) In the United Kingdom, the Department of Health has indicated that physicians who are carriers of the AIDS virus should be authorised to continue practising, except in special cases, and that patients should not have the right to ask their physician whether he or she is a carrier of the virus; the exceptions to this principle involve physicians whose specialisation involves a risk of contact through which the virus could be transmitted, such as certain types of surgery. (Endnote 212) It would appear that the state of health of a person should be taken into account in assessing his or her or her aptitude for a specific job, although he or she should-not be subject to the burden of proving his or her aptitude where the consequences of past or present diseases are concerned. The physical or mental state of health, disabilities in the broad sense of the term, (Endnote 213) deficiencies, (Endnote 214) and the medical history (Endnote 215) of the individual have been included as forbidden grounds of discrimination in the legislation or in collective agreements in several countries. In the legislation of Canada, the concept of "disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. (Endnote 216) Furthermore, when examining complaints based on grounds of disability, the body responsible for the protection of human rights in the same country, between 1984 and 1986, examined widely differing types of mental and physical disability. (Endnote 217)

Age

72. In general, most of the governments' reports reveal that age is normally considered to be a physical condition for which there are particular needs and in respect of which special protection and assistance is recognised as being necessary, in accordance with the provisions of Article 5, paragraph 2, of the Convention. These measures will be further discussed in the section devoted to special protection and assistance measures. Several governments have raised the question of age, and particularly of elderly workers, in the context of the promotion of equality of opportunity and treatment, and no longer consider it exclusively within the framework of protection and assistance. A number of labour codes and specific legislative provisions expressly prohibit discrimination on the basis of age. (Endnote 218) Nevertheless, it would appear that the protection afforded by these provisions must be read in conjunction with the provisions enabling workers who have reached the age of retirement that is in force in the specific sector of activity in the country to terminate their employment. Furthermore, upper age-limits that are set for access to certain categories of employment, such as jobs as public officials, for example, should be re-examined in order to determine the extent to which the restrictions are justified by the requirements of the job in question.

73. Discrimination on the basis of age should thus be seen in relation to a compulsory retirement age and the conditions of employment of elderly workers and of young workers. In Spain, the Constitutional Tribunal has ruled that Additional Provision No. 5 of the Workers' Charter, which sets 69 as the compulsory retirement age, was unconstitutional since it established incapacity for work from a predetermined age, and imposed immediate and unconditional termination of the employment relationship at that age. (Endnote 219) In Czechoslovakia, the Government indicated in its report that section 20 of the Social Security Act of 12 November 1975 (Endnote 220) lays down that employees who have fulfilled the qualifying conditions for an old-age pension may continue to work in accordance with their physical and mental capacities. Organisations (enterprises), acting in co-operation with the works committees of the basic organisations of the trade union movement, shall make suitable arrangements, having regard to the requirements of the national economy, for the continued employment of employees who do not avail themselves of their right to retire on a pension but decide to continue working even after they become entitled to an old-age pension. Production and unified agricultural co-operatives have a similar obligation towards their members. Workers who have not yet drawn a retirement or invalidity pension have their pension benefits increased by a considerable proportion as a result of their longer period of employment. In the United States, legislation has been adopted with the aim of prohibiting discrimination in employment on the basis of age, (Endnote 221) with a view to resolving several phenomena of varying importance affecting older workers: higher rates of unemployment than for young workers and particularly of long-term unemployment; the setting of arbitrary age-limits; "the existence, in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce." The Act applies to private employers with more than 20 employees, public employers, trade unions and employment agencies, and is restricted to persons who are over 40 years of age. (Endnote 222) An employer may discriminate based on age in cases where the employer can prove that age is an occupational requirement justified by the nature of the job, although exclusively economic reasons do not constitute a justification. (Endnote 223) The exception of bona fide occupational requirements has been raised in a series of occupations for reasons involving the safety or health of the worker or of third parties: airline pilots, fire-fighters, police officers, bus drivers and school bus drivers, etc. Nevertheless, in the absence of proof of the impact of age on safety, the courts more recently have been less inclined to automatically consider age to be a bona fide occupational requirement in categories of employment where safety considerations are paramount. The Supreme Court has ruled that it was incorrect for courts to consider the age of 55 as being established as the compulsory retirement age for all fire-fighters merely because Congress had envisaged that federal fire-fighters should retire at the age of 55. (Endnote 224) A compulsory retirement age has been abolished in the legislation of many of the states of the United States for almost all jobs in the public sector. In France, an amendment to the Labour Code provides that clauses in collective agreements, or contracts of employment providing for the automatic termination of contracts of employment when the employee reaches a determined age or is entitled to draw a retirement pension shall be considered to be null and void. (Endnote 225) In several countries, the possibility of abolishing a compulsory retirement age has been examined. (Endnote 226) There is a tendency in these countries for there to be less coincidence between the compulsory retirement age and the qualifying age for retirement benefits, in the face of more flexible forms of terminating the employment relationship which do not bring into question the right to draw a retirement pension. (Endnote 227)

Trade union membership

74. With regard to discrimination that might arise as a result of an individual's membership or non-membership in a trade union, it should be noted that no specific clause concerning the right to establish or join trade unions or to participate in trade union activities was included in the Convention, in order to avoid duplication of the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which recognises these rights for all workers and employers "without distinction whatsoever". (Endnote 228) By providing that each Member "undertakes (...) to seek the co-operation of employers' and workers' organisations (...) in promoting the acceptance and observance" of the policy to promote equality, Article 3(a) of Convention No. 111 recognises that a State could not undertake the activities in question while at the same time permitting or countenancing discrimination in the field of trade union rights. One of the aspects of the co-operation that is sought is based on the elimination of discriminatory practices by trade unions in the admission and retention of members, in trade union activities, etc. (Endnote 229)

75. Two members of the Committee, Mr. S. Ivanov and Mr. A. Gubinski, expressed their opinions as to the application of Convention No. 111 and Recommendation No. 111. In their view, in today's world, characterised by the existence of very different political and legal systems, it is important when examining questions of the application of international labour Conventions and Recommendations in law and practice to take real account of the concrete socio-economic conditions in each country and of the social factor. These conditions in the end are the basis for the establishment of a certain type of law, with its own institutions and legal standards. It is important to take account of concrete socio-economic conditions in examining civic and penal relations, amongst others, but above all in examining labour relations, since that is where the social factor makes itself felt most.

In this regard, the Committee refers to the indications provided below in paragraph 160 of the present Survey.

Endnotes

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Legislation

See related national legislation from Natlex

Zimbabwe: Labour Relations Act of 1984

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C087 Freedom of Association and Protection of the Right to Organise Convention, 1948
Conventions: C097 Migration for Employment Convention Revised), 1949
Conventions: C143 Migrant Workers (Supplementary Provisions) Convention, 1975
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C159 Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983
Recommendations:R151 Migrant Workers Recommendation, 1975