Chapter II. Substative field of application of the convention: access to
training, occupation and employment, terms and conditions of employment
76. Article 1, paragraph 3, of the Convention provides that "the terms
"employment" and "occupation" include access to vocational training, access to
employment and to particular occupations, and terms and conditions of
employment". According to the terms of this definition, the protection
provided for in the Convention is not only applicable to the treatment
accorded to a person who has already gained access to employment or to an
occupation but is extended expressly to the possibilities of gaining access to
employment or to the occupation. It covers also access to training, for
without such access any real possibility of entering an employment or
occupation would be nugatory, inasmuch as training is the key to the promotion
of equality of opportunities. The Recommendation contains provisions
illustrating these ideas more specifically. Pursuant to Paragraph 2(b) --
all persons should, without discrimination, enjoy equality of opportunity and
treatment in respect of:
(ii) access to training and employment of their own choice on the basis of
individual suitability for such training or employment;
(iii) advancement in accordance with their individual character, experience,
ability and diligence;
(vi) conditions of work including hours of work, rest periods, annual holidays
with pay, occupational safety and occupational health measures, as well as
social security measures and welfare facilities and benefits provided in
connection with employment.
Paragraph 2(d) of the Recommendation states that employers should not practise
or countenance discrimination "in engaging or training any person for
employment, in advancing or retraining such person in employment, or in fixing
terms and conditions of employment". Under Article 3 of the Convention the
authorities are to apply, in all their activities, an employment policy free
of all discrimination and to ensure the application of the principles of
non-discrimination in respect of employment under the direct control of a
national authority and in the activities of the training services under the
direction of a national authority. They are under a duty to promote the
application of these principles in other sectors of activity. Equality of
opportunity and of treatment, without discrimination, as regards access to
education and to employment or to an occupation may be recognised by the law
as a right which each individual can enforce by judicial proceedings. (Endnote
1)
Section 1. Access to training and vocational guidance
78. In an earlier general survey the Committee had already expressed the view
that "Since the 1958 instruments cover all forms of employment and
occupations, the words "vocational training" should by no means be interpreted
exclusively in a narrow sense such as apprenticeship and technical education.
(...) In so far as the completion of certain studies coming under the heading
of general education is necessary to obtain access to any given employment or
occupation, or to some specialised form of vocational training, the problems
relating thereto should not be overlooked in the application of the 1958
instruments (...)". (Endnote 3) Where the population as a whole cannot benefit
from general training, a part of the population is unable to acquire more
specialised training and to hold jobs that are as productive as possible.
Similarly, discriminatory practices affecting access to training or the
quality of training will be perpetuated or aggravated in cases where persons
who have suffered such discrimination compete for places in the systems of
vocational training and, consequently, in employment and occupations. The use
of standards of general education that differentiate between men and women, as
is the practice in some countries, (Endnote 4) very soon leads to
discriminatory practices based on sex. A point worth noting in this context is
that the institution of compulsory and free primary education for all is one
of the fundamental elements of a policy of equality of opportunity and
treatment in employment and occupation, as is recognised by the majority of
countries, whatever their level of development. The reports communicated by
many countries give full particulars of the system of general education,
(Endnote 5) of the difficulties experienced owing, e.g. to the economic
situation, and of progress made as regards equality of opportunity and
treatment in the matter of access to training, including literacy, without
discrimination based on sex, race, national extraction or social origin. From
the information given in these reports t appears that in many countries
equality of access to training is considered a condition of access to
employment and to an occupation. In many countries in the African continent
considerable efforts have been made to enable girls to make up for part of the
accumulated lag in school attendance. (Endnote 6) Less full information is
available about the other grounds of discrimination -- political opinion and
religion -- referred to in Article 1, paragraph 1(a), of the Convention. A
number of countries have reported, in addition, on measures taken in the
matter of access to education in order to combat the phenomenon of segregation
in occupations on the basis of sex or race. (Endnote 7)
79. A large number of constitutional and legislative provisions and
regulations have been adopted with a view to ensuring the implementation of
the principle of equality of access to training. Some of these provisions,
which are generally embodied in the Constitution of the State concerned,
prohibit discrimination on various grounds; these grounds may be narrower than
those mentioned in the Convention, and in many cases the relevant provisions
are applicable to citizens only. (Endnote 8)
80. The specific enactments adopted concerning training can be divided into
those intended to govern education, (Endnote 9) which contain, inter alia,
provisions concerning equality of access, and enactments for giving effect to
equality of opportunity and treatment which contain, inter alia, provisions
for ensuring this equality in education and training. (Endnote 10) The
enactments dealing with education cover, as a general rule, a broader range of
grounds of discrimination (Endnote 11) than those concerning equality of
opportunity and of treatment, where in many cases the sole grounds mentioned
are sex or race. (Endnote 12) The scope of these provisions varies greatly: in
some cases one and the same law expressly prohibits discrimination in the
entire system of education, including in training that may be provided in and
by the enterprise. In other cases, the provisions enacted cover only training
provided at enterprise level, the general provisions concerning the equality
of citizens before the law being considered as sufficient to cover training
provided outside the enterprise. In the United Kingdom the legislation enacted
for combating discrimination on the basis of sex or race prohibit
discrimination on either of these grounds by the employer, by vocational
training bodies outside the enterprise and by bodies responsible for
educational establishments, such as educational establishments administered by
a local education authority, independent schools, universities, and such
establishments providing full-time or part-time education as may be designated
by order. (Endnote 13) Practical difficulties may arise in cases where the
authorities responsible for carrying into effect the policy of promoting
equality in education are not the same as those responsible for combating
discrimination in employment. Paragraph 10 of the Recommendation states that
close and continuous co-operation should be established between the bodies
concerned in order that measures taken to achieve the desired objective may be
co-ordinated. In view of the acknowledged importance of training for the
implementation of a policy of equality of opportunity and treatment in
employment and occupation, co-operation between these different bodies should
be strongly encouraged. In Sweden the authorities concerned with the labour
market have a duty to co-operate -- in the context of the policy of promoting
equality of opportunity as between men and women and of combating occupational
segregation -- with the authorities responsible for education and social
affairs and with specific bodies. (Endnote 14) Training, whether vocational or
of a general nature, necessarily involves joint action by various sectors of
activities and by a number of partners; for the sake of illustration one may
mention the bodies set up in many countries for the purpose of working out,
proposing and even co-ordinating a training policy consistent with the
employment situation or with development plans. (Endnote 15) It would be
desirable that the functions of these bodies, where they exist, should be
enlarged to cover the co-ordination of anti-discrimination measures. The
reports received contain very little information on the application of this
provision of the Recommendation.
81. The subject of access to training without discrimination based on any of
the grounds mentioned in the instruments of 1958 is of great importance. In
practice, discrimination in the matter of training may take the form either of
rejecting or deliberately omitting to accept a person's application to be
admitted as a pupil, student or trainee, or else of laying down conditions
governing admission which lead to the exclusion of candidates on grounds
referred to in the Convention. It appears from information contained in the
report of the Secretary-General of the United Nations submitted to the
Commission on Human Rights at its 39th Session (Endnote 16) that in the
Islamic Republic of Iran children professing a certain faith were unable to
gain admission into the educational system. In Chile persons who take part in
party political activities and who have been punished by the authorities
concerned may not register in certain universities even if they fulfil all the
other qualifying conditions for becoming students in those universities.
(Endnote 17) In Poland temporary provisions have been enacted which make
provision for the suspension of a student's rights in cases where the student
has committed a wrongful act causing serious harm to society or an act
prejudicial to the higher interests of the Republic. In especially serious
cases the student concerned may be struck off the register of students, with
all the consequences involved by debarment from studies. (Endnote 18) In
Malaysia provisions are in force which forbid students to be members of or to
join associations, political parties, trade unions or any other kind of
grouping; students who commit a breach of these provisions are liable to a
fine and to imprisonment, and if sentenced to imprisonment, they are
automatically excluded from the university. (Endnote 19) The Committee has
asked several countries for particulars of certain conditions governing access
to training (other than the conditions requiring the possession of diplomas or
degrees) in order to satisfy itself that these requirements do not lead to
discrimination based on prohibited grounds. In some cases the provisions
concerning the award of university degrees stipulate, among the qualifying
conditions, political or ideological conditions; such conditions are not
compatible with the Convention since the academic qualifications in question
give access to a broad range of occupations the performance of which does not
require -- as an intrinsic condition attaching to the work -- the possession
of the political or ideological qualifications demanded of the candidates.
(Endnote 20) With respect to the application of the Convention in another
country that has ratified the instrument, the Committee has expressed the view
that a number of the criteria included in the conditions for access to, and
for success in, advanced education and training (in so far as they refer to
political outlook, partisan conduct, or the achievements of parents in
building socialism) as well as the role assigned in evaluating fulfilment of
these criteria to an organisation responsible for implementing the objectives
of a political party, are not consistent with a policy designed to eliminate
any discrimination on the basis of political opinion or social origin.
(Endnote 21)
82. Discriminatory practices in respect of access to training rarely originate
in legislative provisions or regulations that are expressly of a
discriminatory nature; more commonly they arise out of practices that are
based on stereotypes affecting mainly women or certain disadvantaged or
minority groups of society. In this respect, the positive measures taken to
give effect to the national policy referred to in Article 2 of the Convention
assume special importance. They make it possible to rectify the de facto
inequalities affecting members of groups that are at a disadvantage owing to
the phenomenon of occupational segregation, in particular such segregation
based on sex. A number of reports refer, however, to evidence showing that, in
the application of the Convention, allowance is made for sex-based segregation
in training, which is reflected in the tendency of persons of the one or the
other sex to undertake a course of studies or training that leads to a type of
employment or occupation in which persons of the sex in question predominate.
(Endnote 22). According to information communicated to the Committee by a few
governments, various programmes of instruction or training tend to guide boys
and girls towards different occupations; action is to be taken to remedy this
state of affairs. In a great many countries, the number of girls entering
courses of vocational instruction is smaller than that of boys. In addition,
these vocational training programmes are characterised by a pronounced
segregation of the sexes and are very influential in guiding men and women
towards different types of employment. According to a report prepared by the
government of a European country that has ratified the Convention, (Endnote
23) the occupational segregation is perhaps attributable to the structure of
training rather than to differences in qualifications. In its report the
Government of Canada stated that equality between men and women in training
implied changes in the programmes and in educational policies with a view to
promoting a positive attitude with respect to the abilities and aspirations of
women.
83. The consequences of sex-based segregation in occupations are especially
noticeable in apprenticeship. One government states in its report that the
balance between boys and girls which exists in general education is lacking in
vocational training, and particularly in apprenticeship, for a large number of
firms still offer places to boys only. (Endnote 24) In view of the importance
of apprenticeship in very many countries, special attention ought to be given
to measures for encouraging firms to recruit apprentices regardless of sex or
apprentices of one sex to be trained in occupations traditionally performed by
persons of the other sex.
84. The promotion of equality of opportunity and of treatment in respect of
training applies likewise in the actual process of training. For example, some
provisions specify that it is forbidden to terminate the training on
discriminatory grounds, which are spelt out in these provisions, while other
provisions declare it unlawful to refuse or to curtail deliberately to a
person who is a pupil in an educational establishment any benefits, facilities
or services to which that person is entitled. (Endnote 25) In one country
which has ratified the Convention the authorities may order a student to be
expelled on account of events that have occurred outside the university in
cases where these events have become the subject of judicial proceedings as a
result of complaints or of a summons to appear in court issued in pursuance of
the Act concerning the security of the State and where a judicial decision is
to be rendered and enforced. The offences referred to in the said Act include
the unauthorised call for public assemblies in public thoroughfares and
incitement to any other form of demonstration tending to facilitate or make
possible a disturbance of the public peace. (Endnote 26)
Section 2. Access to occupation and employment
86. The Convention refers to the promotion of equality and treatment in
respect of employment and occupation. During the early stages of the
discussion of the text by the International Labour Conference, an amendment to
delete the reference to occupation had been submitted by some governments. The
intention of the sponsors of the amendment was to ensure that the instrument
should not apply to independent employment (Endnote 32) -- which had been
expressly mentioned in the report by the Office. The amendment was eventually
rejected. It was pointed out that it would hardly seem right for a Convention
to deal solely with the elimination of discrimination in access to
wage-earning employment and not to give to workers wishing to be self-employed
any protection against laws, regulations or practices arbitrarily preventing
them from doing so. (Endnote 33) In an appendix to the report prepared for the
second debate on the Convention by the Conference the Office explained the
significance of the words "employment and occupation". (Endnote 34) It
referred specifically to the Seventh and Eighth International Conferences of
Labour Statisticians. These Conferences had interpreted the word "occupation"
to mean the trade, profession or type of work performed by the individual,
irrespective of the branch of economic activity to which he is attached or of
his industrial status. They had further decided that "persons in employment"
included all persons above a specified age who were "at work" and that the
phrase "at work" included not only persons whose status was that of employee
but also those whose status was that of "worker on own account", "employer" or
"unpaid family worker". In its note the Office concluded that at the
international level both words had a comprehensive meaning. At the
Conference's 42nd Session, in 1958, an amendment submitted, like the earlier
one, to exclude independent workers from the scope of the Convention was
rejected. (Endnote 35)
87. Under some legislative provisions dealing with the prohibition of
discrimination the occupational scope of the prohibition is narrower than that
of the Convention in that they exclude workers in certain sectors of activity
from the benefit of the guarantees against discriminatory practices in
employment. In Norway persons in the service of the civil aviation
undertakings and certain workers in agricultural and forestry undertakings
have recently become eligible for the benefit of the guarantees offered by the
Working Environment Act. (Endnote 36) The only activities still not covered by
the said Act are shipping, hunting and fishing (including the processing of
catches on board ship) and military aviation. In Spain the Workers' Charter,
which is the statutory basis of equality of treatment in employment
relationships, does not apply to persons whose service is governed by rules
applicable to the public service or who are in the service of bodies corporate
governed by public law, nor does it apply to certain employment relationships
of a "special nature". (Endnote 37) Similarly, in Rwanda agricultural workers,
persons appointed under civil service rules (as well as persons on the same
footing) and persons carrying on an independent occupation are not covered by
the Labour Code and hence do not benefit from the protection established by
the provisions prohibiting discrimination. (Endnote 38) The Government has
stated that the legislation which was to govern agricultural workers has not
yet been enacted but that these workers, and also the other categories of
persons mentioned above, are protected by the provisions of the Constitution
of Rwanda which forbids all forms of discrimination. While this explanation
may satisfy the requirements of the Convention in the matters of equality of
treatment to the extent to which the constitutional provisions may be relied
upon in court, it is not sufficient to satisfy the requirements of the
promotion of equality of opportunity, since the ban on discrimination is not
by itself adequate for thispurpose. Some provisions for promoting equality of
opportunity and treatment apply only to undertakings that employ not less than
a specified number of wage earners: (Endnote 39) these provisions cannot be
regarded as giving an employer with fewer than the minimum number of employees
a licence to practise discrimination on any of the prohibited grounds but they
do leave the employees without protection against possible discrimination
against them. (Endnote 40) An exception to the protection against
discrimination based on the number of persons employed is compatible with the
Convention only if the exception is of a temporary or transitional nature; it
should be dropped as soon as possible (Endnote 41) and the situation which had
given rise to its adoption should be dealt with through measures under Article
3(a) of the Convention.
89. The category of non-wage-earning workers -- while not very large in the
industrialised planned economy countries (Endnote 47) -- accounts in some
developing countries for more than 80 per cent of the labour force, the great
majority being engaged in the rural sector; the proportion is reversed in the
developed market economy countries, where these workers account for 5 to 10
per cent of the labour force. One of the main difficulties is that these
persons are covered by the general provisions concerning equality before the
law laid down in the constitutions, and that the provisions of the Labour
Codes do not apply to their position or are formally restricted to wage
earners. As a result, in some cases the protection extended to these workers
may be less far-reaching than that granted to wage earners. This category of
the labour force -- which includes workers from farmers to lawyers as well as
artisans in the crafts -- is quite heterogeneous, and this heterogeneity is
reflected in the great diversity of the practical conditions governing access
to these activities.
90. With due allowance for the variety of situations, it is nevertheless
possible to discern some common characteristics as regards equality of access
to these occupations. In the first place, in practice access to these
occupations depends on material conditions: access to land, access to credit,
access to the goods and services necessary for carrying on the occupation in
question. Access to these goods and these services without discrimination on
any of the grounds mentioned in the Convention is one of the objectives of
national policy aimed at promoting equality of opportunity and treatment in
employment. (Endnote 48) In some cases discrimination is the result of rules
concerning marital or personal status, as happens for example where the
inheritance system excludes certain categories of persons or where the right
to enter into contracts is restricted by a condition requiring the permission
of a third party. In Honduras unmarried women without dependants may not
benefit from the facilities offered by the Agrarian Reform Act for obtaining
access to land. (Endnote 49) In some countries measures have been adopted for
facilitating access to land for certain categories of persons. (Endnote 50) In
many countries provisions have been enacted to ensure access to credit
(Endnote 51) or to business premises (Endnote 52) without discrimination.
Under similar provisions discrimination against members of industrial or
commercial companies is declared unlawful. (Endnote 53) In France the Penal
Code provides that it is a punishable offence for any private or public person
to act or to fail to act in a manner that hampers the carrying on of any
economic activity whatsoever on such grounds as sex, race or religion.
(Endnote 54) The Committee has noted with satisfaction the information
communicated by the Government of Guatemala that certain decrees which had
imposed restrictions on the basis of race or national origin for the practice
of certain commercial occupations or comparable activities had been made
inoperative by the enactment of a provision prohibiting discriminatin on these
grounds. (Endnote 55) The Council of the European Communities has adopted a
directive requesting its Member States to take the necessary action, by 30
June 1989, in order to eliminate any provisions inconsistent with the
principle of equality of treatment for men and women, including any such
provisions that deal with the formation, installation or extension of an
undertaking or with the initiation or extension of any other kind of activity.
(Endnote 56) From the information given in the reports it is not possible to
gauge precisely the extent of the protection which these persons enjoy against
discrimination on the grounds mentioned in the Convention as regards access to
the various goods and services necessary for the carrying on of an occupation.
The Committee considers that fuller particulars should be supplied in this
respect.
91. In many countries there are bodies whose members are either elected
representatives of the professions, (Endnote 57) or persons appointed by the
authorities from among members of the profession, (Endnote 58) or else state
officials, which play a part in fixing the conditions governing access to the
legal or medical profession and other professions. The laws dealing
specifically with equality contain special provisions forbidding these
regulatory bodies to practise discrimination. (Endnote 59) It would be
unlawful, for example, for an authority or body which is empowered to grant,
renew, prolong, revoke or cancel a licence or qualification necessary for the
practice, or for facilitating the practice, of a profession, or for carrying
on a business, or for being admitted to an occupation, to discriminate against
a person on certain grounds (sex, race, etc.) by refusing, or by failing to
grant, to that person the renewal or prolongation of the licence or
qualification, by revoking or cancelling the licence or qualification, or to
lay down discriminatory conditions governing the grant of the licence or
qualification. In Denmark the obligation to respect equality of treatment is
owed also by any person who takes measures or decisions related to a person's
access to an independent occupation, a provision which covers both the
officers of an authority and private persons who may have occasion to grant or
withhold any of the facilities, permits, etc. on which access to the
occupation is dependent. (Endnote 60) In other countries the power to grant
the licences or permits necessary for the practice of non-wage earning
professions or occupations is vested in the authority, which has a duty to act
in conformity with the principle of the equality of citizens before the law.
(Endnote 61)
92. Seemingly neutral requirements that govern the possibility of acceding to
or carrying on an occupation may involve indirect discrimination based on
grounds referred to in the Convention. This is the case where the possession
of certain diplomas issued by specified institutions or the fulfilment of
special conditions is required in order that a person may be admitted to such
varied occupations as those of hairdresser, advocate, medical practitioner and
midwife. These requirements, while applied uniformly to all candidates,
nevertheless result in debarring certain persons from the occupation in
question on grounds of national extraction or sex. (Endnote 62) In the report
submitted to the International Labour Conference at its 40th Session it was
stated: "Where freedom to engage in employment on one's own account or to
practise in a professional capacity is conditional on possession of a licence
or title granted at the discretion of the national authorities or of
autonomous professional bodies, there may be complaints that complete
objectivity is not observed as regards varying professional qualifications;
this may be particularly so in the case of the recognition of professional
qualifications acquired in foreign countries." (Endnote 63)
93. The existence of a public employment service may be an essential element
of a policy for promoting equality of opportunity and treatment in employment.
(Endnote 64) Several countries have stated that the principle of equality laid
down in the constitutional provisions or in legislation applied to placement
services in the same way as to any other public service. In the USSR it is one
of the functions of the placement offices to assist in placing in employment
women who have children, women who look after their household and women who
farm their own plot of land. (Endnote 65) In Haiti provisions are in force
forbidding officials or other persons in the service of the State to practise
any discrimination whatsoever in the performance of their functions. In some
countries special laws or regulations governing the operation of the placement
services contain provisions that prohibit discrimination in placement:
observance of the principle of equality of treatment in the operation of the
service, (Endnote 66) ban on the application of discriminatory criteria,
(Endnote 67) prohibition for the service to receive or fill offers of
employment involving discriminatory conditions, (Endnote 68) prohibition for
an employer to refuse, on grounds deemed to be discriminatory, to hire a
person who is proposed to him by the placement service. (Endnote 69) In its
report the Government of Czechoslovakia states that only in specified cases
may an enterprise refuse to enter into a contract with a worker who is
recommended to it by the National Committee, which is the state body
responsible for labour questions and whose functions include the placement of
persons applying for employment or for an apprenticeship contract. (Endnote
70) In countries where there are private employment agencies, these should
observe the government's policy in respect of equality of opportunity and
treatment. There should be legislative provisions specifying the kind of
information which may be recorded by these agencies and communicated by them
to employers and indicating in what form the relevant partculars may be
recorded and communicated. (Endnote 71) The governments of some other
countries have reported that employment services other than those operated by
the State are subject to the supervision of the State's administrative
authorities and that penalties, such as the withdrawal of the licence, may be
imposed in the event of any breach of the obligation to observe the principles
laid down by the State in this field. (Endnote 72)
94. In an earlier survey the Committee had stated: "It is important that, in
its practical day-to-day action and in its relations with its users, the
employment service should not confine itself to respecting merely the negative
aspect of the principle of non-discrimination -- that is, to abstain from
practising discrimination -- but should also act in the positive sense of
developing effective equality in employment matters." (Endnote 73) Article
3(c) of the Convention provides that each Member for which the Convention is
in force undertakes to ensure the observance of the national policy designed
to promote equality of opportunity and treatment in respect of employment and
occupation in the activities of placement services under the direction of a
national authority. (Endnote 74) Several countries have reported on measures
taken to ensure that the activities of the placement services take into
account the promotion of the equality policy. In Sweden the Labour Market
Administration has for a long time included staff specialising in questions
concerning equality. In Norway the National Equality of Opportunity Council
has suggested that advisers on equality of opportunity should be recruited to
work in all employment offices. The function of these advisers would be to
provide information on a full-time basis about equality of opportunities and
to provide continuing training for staff members of these services in this
field. Where employment and occupational registers are used to facilitate the
placement of applicants for jobs, some countries lay down the condition that
these registers must not contain any particulars that might lead to indirect
discrimination. (Endnote 75) From the information available it appears that in
many cases the practices followed by placement services ought to be reviewed
in the light of the objectives of the equality policy in order to eliminate
anything that tends to perpetuate direct or indirect discrimination on grounds
of sex. (Endnote 76)
95. The application of the principle of equality of opportunity and treatment
for all persons in respect of access to employment of their own choice does
not confer upon every person a right to obtain a particular post regardless of
his or her qualifications or other conditions, (Endnote 77) but means that
every person has the right to have his or her application for appointment to
the post of his or her choice considered equitably, without discrimination
based on any of the grounds referred to in the Convention. (Endnote 78) The
recruitment procedure, and the statement of reasons in the event of an adverse
decision on the application for appointment, are of great importance for the
respect of this right. In several countries a person whose application for
appointment to a post that had been publicly advertised has been refused may
ask the employer for explanations in writing as to the training, practical
experience and other easily identifiable qualifications of the person of the
other sex who has been appointed to the post in question. (Endnote 79)
According to their reports, in some countries recruitment to a post must be
based on objective criteria, competence or merit, excluding requirements not
connected with the performance of the activity in question or with the
conditions under which the activity is carried on. (Endnote 80) This is aimed
specifically at requirements as to height, weight or physical strength, which
must not be regarded as objective criteria for recruitment purposes, except in
so far as they are requirements inherent to the performance of a particular
activity. (Endnote 81) In some countries the labour legislation specifies the
information which must be given to the employer and which will be recorded in
the personnel file of the worker concerned. (Endnote 82) In other countries
the employer is forbidden by law to inquire into the political, religious or
trade union views of the person concerned, or into any event unrelated to the
evaluation of the occupational aptitude of workers for the purpose of their
recruitment. (Endnote 83) Under rovisions in force in some of the States of
the United States the employer may not ask for or attempt to obtain
particulars of certain aspects of a candidate's personality or of his or her
physical or mental condition. (Endnote 84) As a general rule, the data
contained in personnel files must be safeguarded in such a way that the
worker's privacy is respected. To achieve this objective various measures are
possible: prohibition against keeping personnel files beyond a certain time;
prohibition of the disclosure of certain information; (Endnote 85) submission
of the personnel file to the worker in order that he or she may satisfy
himself or herself that the data do not contain any matter unrelated to the
needs of the job, (Endnote 86) etc.
96. In a number of countries action has been taken to forbid the publication
in the press of discriminatory offers of employment or the announcement of
such offers by an employer. The Government of Yugoslavia has indicated that,
for the purpose of ensuring compliance with the procedure for competitions and
public offers of employment in its country, the Labour Inspectorate is
responsible for taking action to eliminate from announcements of competitions
and of job vacancies any reference to the requirement of "moral and political
suitability", which has been ruled unconstitutional by a joint session of the
presiding judges of the Constitutional Courts. (Endnote 87) In other countries
the law provides that it is an unlawful discriminatory act to use or
distribute forms of application for employment, or for an employer or
prospective employer to publish an advertisement or to carry out interviews or
make written inquiries, that contain or imply restrictions, conditions or
preferences based on unlawful grounds. (Endnote 88) By virtue of such
provisions all the persons concerned are liable to penalties: the person
responsible for the enterprise in question, the person responsible for the
newspaper or journal which published the advertisement in dispute, (Endnote
89) the person responsible for the employment agency (if such an agency was
involved), etc. Other provisions deal more specifically with particular
grounds of discrimination (Endnote 90) and are of more limited scope as
regards the persons who are liable to prosecution. Apart from their practical
aspect these measures may make it possible to revise the description of trades
or occupations that carries a "male" or "female" implication, by requiring
offers of employment to be drafted in the most neutral terms possible. In this
way, these measures contribute to the prevention of indirect discrimination.
97. Indirect discrimination seriously affects equality of access to
occupations because, first of all, it aggravates the consequences of
segregation in training, in particular to the detriment of women. The
occupational segregation noted in access to training that leads to "typically
male" or "typically female" trades or occupations manifestly recurs in access
to these occupations. It appears however that the mere availability of
adequate training does not guarantee that the occupation for which the
training is to prepare a person is actually open to that person. Archaic
attitudes and stereotypes as regards the distribution of "male" and "female"
tasks are still prevalent, even though some progress may be noted. (Endnote
91) One of the reasons for the sex-based segregation in occupations is the
presupposition that women have to be restricted to a relatively small number
of occupations because of the ideas and preferences of employers which are
themselves bound up with the general attitudes in society as a whole towards
the employment of women. A kind of reluctance on the part of employers to hire
certain persons has been described as "statistical discrimination", an
expression which refers to an adverse decision taken with respect to a person
by reason of characteristics thought to be typical of the group to which he or
she belongs. The widespread acceptance of the assumption that productivity
differs between one sex and the other is the basis of the statistical
discrimination practised by employers. In accordance with this model employers
do not recruit anybody belonging to a group whose productivity -- in the
employers' opinion -- is lower. Statistical discrimination contributes to
occupational segregation in two ways. First, because they share the belief
that men and women differ in their performance at work, employers may tend to
favour the one or the other sex for a specific task: jobs calling for great
manual nimbleness would be given to women, those calling for the exertion of
physical strength to men. Secondly, if the employer expects women to be more
likely than men to leave their job, e.g. to bring up their children, he or she
will recruit women for jobs calling for little or no in-service training or
calling for qualifications the cost of which is borne by the workers
themselves. Evidence of this occupational segregation can be found in the
sexist job descriptions in ordinary language and in the mass media. Despite
the efforts that may be deployed to make some descriptions of occupations more
neutral, a good many descriptions are still distinctly sex-related. (Endnote
92)
98. The problems of sex-based occupational segregation have been studied by
many governments, as is shown by the considerable body of research and surveys
on the subject. In Romania there is a high concentration of women in commerce
(60.2 per cent of all commercial workers in 1982), while in the industrial
sector women are mainly employed in the textile, synthetic fibre and clothing
industries; very few women are employed in the high-technology industries.
(Endnote 93) In many other countries women are heavily concentrated in the
tertiary sector. (Endnote 94) De facto sex-based occupational segregation
occurs not only as between one sector and another or as between different
branches of an occupation, but also within enterprises. According to a survey
carried out in the United States, in 231 of the 391 leading firms in one of
the states there is complete de facto sex-based segregation; in none of these
firms do men and women hold identical posts. (Endnote 95) In the United
Kingdom a survey has shown that sex-based segregation in employment was still
very common: 63 per cent of women work only with women, 81 per cent of men
work only with men. (Endnote 96) Occupational segregation may also be the
result of a recruitment policy adopted by enterprises of deliberately limiting
the number of women recruited -- a policy conflicting with the sex equality
policy laid down by the authorities. (Endnote 97) This kind of segregation,
while not always coinciding with the fact that, compared with their overall
share in the staff, women tend to be overrepresented in the lower ranks of the
enterprise, is correlated with this inequality. One point noted in the studies
concerning this phenomenon of de facto sex-based occupational segregation is
that women are particularly highly represented in the branches or sectors of
activity and in the trades and occupations where personal incomes are
traditionally the lowest. Various measures have been adopted to fight against
this phenomenon. The practice of setting quotas is used in several countries.
In some cases quotas have been introduced to counteract the trend towards the
"feminisation" of certain occupations, whereas no such action was taken or
planned in the more numerous cases where men are predominant in a trade or
occupation. (Endnote 98) In a number of countries which have ratified the
Convention a subsidy to promote equality of status is payable to any employer
who recruits a woman for a job traditionally regarded as a "male" occupation,
and in one country such a subsidy is payable also to an employer who recruits
a man for a "female" occupation. (Endnote 99) According to some surveys, the
reason why occupational segregation has become less pronounced is that men
were entering traditionally "female" occupations, rather than that women were
entering traditionally "male" occupations. (Endnote 100)
99. Equality of access to freely chosen employment within the meaning of the
Employment Policy Convention, 1964 (No. 122) will be seriously jeopardised in
cases where forced or compulsory labour is imposed on certain categories of
persons defined according to criteria within the scope of the instruments of
1958. (Endnote 101) The Abolition of Forced Labour Convention, 1957 (No. 105)
prohibits in its Article 1(a) the use of any form of forced or compulsory
labour "as a means of political coercion ... or as a punishment for holding or
expressing political views or views ideologically opposed to the established
political, social or economic system" and, in Article 1(e), "as a means of
racial, social, national or religious discrimination". (Endnote 102) From the
information available it appears that some categories of persons or social
groups may suffer discrimination in recruitment. Aboriginal and tribal
populations are not, of course, the only groups in a national society to be
vulnerable directly to discrimination by means of coercion or improper
practices in recruitment and employment. The fact is nevertheless that in many
parts of the developing world these populations have been and in some cases
are still nowadays particularly liable to be victims of discrimination of this
kind. In a number of countries these population groups consist of seasonal
workers, including plantation workers, which, unlike other workers, are not
protected by national labour legislation. In other cases, instances of debt
bondage and other forms of servitude are particularly common among workers in
this category. The United Nations study of the problem of discrimination
against indigenous populations stresses the importance of this question.
(Endnote 103) In this study the Special Rapporteur notes that in some
countries, in sectors of the economy in which working conditions and pay are
wretched -- below the national average -- the workforce tends to be composed
almost exclusively of indigenous workers. Although in theory their conditions
of employment ought to be governed by the labour legislation, in practice the
provisions of both national and international law are very commonly breached
in the case of these workers. Such exploitative regimes as serfdom, debt
bondage and the many types of compulsory service have been abolished by law.
Yet there is conclusive evidence that practices of this kind still continue
and that the victims are frequently indigenous populations. (Endnote 104) In
only a few countries are measures in force for the special protection of
indigenous workers. (Endnote 105) In Brazil all Indians are deemed to qualify
for the benefit of special regulations as wards of the National Foundation for
the Indians (FUNAI). (Endnote 106) These regulations provide in general terms
that the Indians are entitled to the benefit of the Brazilian labour
legislation and specify that any contract of employment entered into with
"isolated Indians" is void, and that contracts must be approved by the
Foundation, which will issue guide-lines concerning the conditions of
employment of Indians. In other countries in Latin America measures have been
adopted in recent years for improving the conditions governing the recruitment
and employment of indigenous rural workers, either by the enactment of
regulations applicable to recruitment activities that are not subject to
licence or by extending the scope of application of the national labour and
social security legislation to cover rural seasonal workers. In Guatemala the
Government has made regulations for the application of the Plantations
Convention; the regulations contain provisions concerning the recruitment and
employment of the workers, the transport of workers, and their living and
working conditions. (Endnote 107) In Bolivia a decree has been enacted
concerning the applicability of the general labour legislation to seasonal
workers. (Endnote 108) Pursuant to the Decree, private recruitment is
forbidden, workers may only be recruited in their home area or at the
worksite, transport must be provided for them free of charge and they must be
paid at the rates in force locally. In India special problems arise because of
the existence of the system of debt bondage which continues to produce its
harmful effects in many regions even though it has been abolished by law.
(Endnote 109)
100. In so far as the State as an employer must abide by the principles whose
observance it is to promote, and by reason of the size of the employment under
the State's control, the public sector plays a key part in the general
implementation of the government's policy for promoting equality of
opportunity and treatment in employment. In addition, in some countries a
preparatory period in the public service is mandatory for persons wishing to
enter, for example, the teaching or legal profession, even if they have no
intention of remaining in the public service subsequently. (Endnote 110) So
far as employment in the public service is concerned, the principle of
equality of access for citizens is laid down in a large number of
constitutional provisions (Endnote 111) and regulations governing the public
service. (Endnote 112) The provisions affirming the principle of equality of
access may be supplemented by provisions guaranteeing access to employment in
the public service without discrimination based on various grounds. (Endnote
113)
101. From the information available it appears that the commonest -- and often
the only -- prohibited ground of discrimination mentioned in the regulations
applicable to the public service is that of sex. (Endnote 114) What is
specially noteworthy in this connection is the trend towards the removal of
restrictions -- as regards access to certain agencies -- that were formerly
applicable to women in many countries. (Endnote 115) Some enactments which
provide for equal opportunities and treatment for men and women are applicable
to the public sector only, (Endnote 116) others apply to both the public and
private sector, (Endnote 117) while yet others contain some provisions
applicable to the public service. In an earlier general survey the Committee
considered the application of the principle of equal remuneration in the
public sector; the conclusions reached by the Committee in that survey are
equally valid as regards the present survey. (Endnote 118) In the light of the
information available, however, a number of points call for further
discussion. In the first place, rules fixing quotas for the purpose of
limiting the number of women in the public service (Endnote 119) or providing
for the separate recruitment of men and women are tending to be phased out,
(Endnote 120) and in cases where the system of separate recruitment is still
currently in use the criteria for its application have been spelt out and now
specify the qualifications needed for the performance of the function in
question. However, a great deal remains to be done in this field. In several
countries the public service regulations specify that the provisions governing
access to employment in certain bodies may -- on account of the exigencies
peculiar to certain functions or of the circumstances in which these functions
are performed, or owing to the nature of these functions -- reserve access
thereto for candidates of a particular sex. (Endnote 121) In Côte d'Ivoire the
regulations applicable to the personnel of the postal and telecommunications
services give priority to females for access to certain functions, while at
the same time debarring females from appointment to certain other functions.
(Endnote 122) What matters is that these preferential and exclusionary
provisions should not have the effect of restricting the female employees to
positions in which they have no real prospect of promotion. That would be the
case if the women were disqualified from access to supervisory, co-ordinating
or managerial functions or to certain technical functions that are higher in
rank than those for which they enjoy a preference. In France a regulation was
at one time in force which provided, in respect of a particular group of
officials -- teachers -- for separate competitive examinations for recruitment
for men and women in cases where the number of officials of either sex
exceeded 65 per cent of the total number of these officials. (Endnote 123) The
Government withdrew the teaching profession from the list of professions for
which recruitment in a manner at variance with the principle of the equality
of the sexes might be permissible. The criterion concerning the exigencies
peculiar to certain functions has proved too vague in practice and has been
replaced, in several countries which formerly applied it, by the more
functional criterion of the decisive condition for the discharge of the duties
incumbent upon the public servants in question. (Endnote 124) Secondly,
provisions have been adopted in several countries to enhance the opportunities
of women to be recruited to the public service; for example, the upper age
limit for entry into the public service has been raised for women who are
bringing up or have brought up children, (Endnote 125) or targets have been
fixed to ensure equality of numbers of male and female employees in the public
and administrative services. (Endnote 126)
102. In many countries the rule commonly in force is that the right to enter
and to make a career in the public service is based -- as regards all or some
of the posts -- on merit, qualifications or aptitude, which are tested by
means of a procedure of competitive examinations. In the context of the
present survey it is not possible to discuss the examination procedures in
detail, which vary greatly from country to country. The Committee notes that,
essentially, these procedures correspond to the government's concern to obtain
the services of the best qualified officials and ultimately to establish the
grading system which is indispensable in any public administration. (Endnote
127) It would be desirable, therefore, that -- where this has not already been
done -- the provisions concerning in particular competitive examinations and
physical tests which may be prescribed in certain cases should be reviewed
from the point of view of equality of opportunity and treatment without
discrimination based on one or more of the grounds mentioned in the
Convention. (Endnote 128) In addition, in some cases admission to the
examination is subject to a decision by the administrative authority, which
draws up a list of the persons allowed to take part in the competitive
examination; in certain countries the courts are empowered to determine
whether the principle of equality of treatment has been respected. (Endnote
129) The reasoning given for the decision is of considerable importance in
this field for the purpose of enabling the court to make an effective ruling
on the authority's decision. (Endnote 130) A difficulty may arise in countries
where the substantive and procedural rules safeguarding officials against
discrimination are not applicable to candidates for employment in the public
service, whereas certain obligations which are binding on officials are also
imposed on candidates. The observance of the principle of equality of
opportunity and treatment as regards access to the public service is not
guaranteed in cases where access to the service depends on presumptions
concerning the candidate's future attitude that are based not on acts for
which he is personally answerable but on opinions. In several countries
independent bodies are responsible for applying the rules governing access to
the public service, and these bodies have broad powers with regard to
competitive examinations and appointments to the public service. (Endnote 131)
Most often, the decisions of these bodies need not be supported by a statement
of reasons, and in many cases no appeal lies against their decisions. Where
their decisions may be challenged by an appeal, these decisions may not be
overruled or set aside except on a ground of discrimination expressly
mentioned in a law, such as the law concerning discrimination based on sex or
rce. Hence, for the purpose of ensuring the application of the principle of
equality of opportunity and treatment as regards access to employment in the
public sector, it is essential that all the grounds of discrimination referred
to in Article 1, paragraph 1(a), of the Convention should be mentioned in any
legislation dealing with appeals of this kind. (Endnote 132)
103. Some provisions specify that certain categories of posts in the public
sector or in the public service are not subject to the rules governing
recruitment based on a procedure for checking merit or qualifications, but to
an appointments procedure. In some cases the appointments (or nomination)
procedure is stated to be applicable to confidential, managerial or
responsible posts, which are not however precisely defined. (Endnote 133) Some
of the relevant provisions do not give any indication for determining what is
the nature of the posts in questions. (Endnote 134) The Committee has asked
the governments to furnish particulars of the nature and number of posts
subject to appointments or nomination procedures, and of the criteria used in
the selection made, in order that it may examine the way in which the
Convention is being observed in this field.
104. In several countries the provisions governing access to the public
service have been amended so as to drop the requirement of "good conduct" or
"good moral standing" which was formerly stipulated; the requirement has been
replaced by provisions calling for particulars that are less open to various
interpretation (e.g., police record). (Endnote 135) Some such requirements are
still in force in a number of countries. (Endnote 136) Although in most cases
these requirements are unrelated to the application of the Convention, their
scope must, however, be examined, in order to ascertain the observance of the
principle of the Convention in this field.
105. The security measures adopted with respect to candidates for employment
in the public service may also affect the observance of the principle laid
down in the Convention. Such administrative security checks, generally limited
to employment in confidential positions or in posts that are sensitive from
the point of view of state security, are not commented on specifically in the
reports supplied by governments. Nevertheless, from the information available
it appears that in some countries such security checks are applicable without
distinction to all posts in the administration. (Endnote 137) Such inquiries
should not be permitted or carried out except where justified by the inherent
occupational requirements of the post in question. Moreover, any person who is
denied access to a particular post for security reasons ought to have the
right to appeal against the decision. It is of the utmost importance that an
appellate remedy should be available to persons who are wrongfully denied
access to a post for security reasons that are based on unlawful grounds of
discrimination, such as national extraction, social origin, religion or
political opinion. (Endnote 138)
106. Paragraph 2(f) of Recommendation No. 111 provides that "employers' and
workers' organisations should not practise or countenance discrimination in
respect of admission, retention of membership or participation in their
affairs". This provision concerns the practice of employers' and workers'
organisations; their practice may be influenced by provisions of national
legislation or determined by the terms of their own regulations. (Endnote 139)
So far as national legislation is concerned, Article 2 of the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87)
lays down the principle that "Workers and employers, without distinction
whatsoever, shall have the right to establish ... organisations". (Endnote
140) In an earlier General Survey the Committee stated that difficulties as
regards joining or retaining membership of an organisation to which Convention
No. 87 applies might stem from restrictions relating, for example, to race,
nationality, sex and political affiliation or activities. (Endnote 141) So far
as the organisations' own regulations are concerned, those of most of the
trade union organisations contain provisions concerning membership and
participation in trade union activities which prohibit discrimination on most
of the grounds mentioned in the Convention, in particular discrimination on
the grounds of sex, race and colour. (Endnote 142) The rising share of women
in wage-earning and salaried employment has resulted in an increase of women
members in trade unions. Their share in the membership has, however, kept
lagging behind their corresponding share in employment, and a great deal
remains to be done in this field. (Endnote 143) It is for the employers' and
workers' organisations to take action, in conformity with the ILO instruments
concerning freedom of association and collective bargaining, in order to
eliminate practices that may lead to direct or indirect discrimination based
on any of the grounds mentioned in the Convention in respect of admission to
or membership in such organisations and participation in their activities.
Section 3. Terms and conditions of employment
107. In Article 1, paragraph 3, of the Convention the terms "employment" and
"occupation" are defined as including "terms and conditions of employment".
The meaning of "terms and conditions of employment" is further spelt out in
the Recommendation (Paragraph 2(b)) which specifies the following areas:
advancement in accordance with the individual character, experience, ability
and diligence of the person concerned; security of tenure, which includes
primarily protection against dismissal on unlawful grounds; remuneration for
work of equal value; and conditions of work, "including hours of work, rest
periods, annual holidays with pay, occupational safety and occupational health
measures, as well as social security measures and welfare facilities and
benefits provided in connection with employment". The concept of terms and
conditions of work is broader than that of the general conditions of
employment, which it comprises. A number of specific provisions concerning the
most important constituents of this concept of "conditions of work", in
particular remuneration, appear in most of the legislative enactments dealing
with equality of opportunity and of treatment. (Endnote 144) So far as other
conditions are concerned, the legislations as a rule confine themselves to
enacting a general provision that covers any other condition of work or of
employment not expressly mentioned. Some legislation makes the employer
responsible for providing for employees working conditions free of
discrimination and harassment. (Endnote 145) The information supplied gives a
number of particulars of conditions of employment, viz. promotion, security of
tenure, equal pay, equality of treatment for purposes of social security, and
certain matters affecting working conditions.
108. The instruments of 1958, in referring to promotion as one of the elements
of conditions of employment, establish the right of every person not to be
subject to any discrimination based on such grounds as race, colour, sex,
national extraction, political opinion, religion or social origin as regards
promotion earned in the course of employment. (Endnote 146) Many legislative
provisions dealing with equality of opportunity and treatment refer expressly
to the observance of this principle in the matter of promotion and forbid any
discrimination based on certain grounds in the operation of systems of
promotion. (Endnote 147) The provisions of some labour codes define the
meaning of "promotion" (Endnote 148) and give prominence to the connection
between promotion and vocational training. (Endnote 149)
109. To be able to exercise effectively the right to promotion, one must be
familiar with the rules and criteria that determine the selection and choice
of the persons who may be promoted. With the exception of those applicable to
the public service, the rules and criteria governing promotion are rarely
specified in the legislation and regulations. (Endnote 150) In some countries
collective agreements indicate broadly the procedure to be observed for
purposes of promotion and specify the criteria to be applied in choosing
candidates for promotion. (Endnote 151) In other countries some particulars
concerning promotion are given in the work rules in force within enterprises.
In some countries, the courts may monitor the conduct of competitive
examinations and their results. (Endnote 152) The criteria commonly mentioned
concern performance, qualifications, merit, seniority, experience, past
training, but also fitness to perform the tasks of the new post. In the public
service the criteria for promotion are much the same but they are somewhat
differently weighted in the evaluation carried out for the purposes of
promotion. Seniority still looms quite large among the criteria taken into
account, although it has lost some of its importance as compared with the
criteria of merit and qualifications. (Endnote 153) The equitable application
of most of these criteria should not lead to direct discrimination in
promotion, but in order to forestall indirect discrimination, it may be
necessary to review, in the light of the principle laid down in the
Convention, the choice and weighting of the elements to be taken into account
in evaluating merit and qualifications. (Endnote 154)
110. The functioning of a system of promotion free of discrimination is at the
core of the questions relating to vertical occupational segregation; this
segregation affects primarily women but in some countries affects also
minorities that are obviously distinguishable by race, colour or national
origin and even minorities whose distinctive characteristic is their religion
or social origin. In France a survey has shown that the share accounted for by
women in supervisory positions in the banking sector was only between 11 and
16 per cent, even though this sector employs large numbers of women (between
55 and 65 per cent of the total staff is female). In addition, where women
succeed in rising to higher grades it takes them much longer to do so than it
takes their male colleagues. The survey has also shown that the number of
women in senior positions has increased, in percentage terms, much faster than
that of men. (Endnote 155) In the USSR a survey carried out in 1976 showed
that in industry women accounted for 70-80 per cent of the workers in the
first and second categories of skill, and for 5-35 per cent in the fifth,
sixth and higher categories; 9 per cent of works managers were women. (Endnote
156) By means of continuous training and of facilities granted to persons with
family responsibilities to enable them to receive continuous training it
should be possible to provide more equitable opportunities of promotion. So
far as the public service is concerned the Committee referred, in its General
Survey on equal remuneration, to the high proportion accounted for by women in
the public service and drew particular attention to the imbalance between the
sexes at all grades and to the fact that in some countries women are heavily
represented in non-permanent and auxiliary positions. (Endnote 157) In several
countries programmes have been set up for rectifying this imbalance; these
programmes will be more fully discussed in the part of the present survey
which deals with positive action. Owing to the large share accounted for by
the public service in total employment, but also because a State which
ratifies the Convention is committed to apply the policy of equality of
opportunity and treatment "in respect of employment under the direct control
of a national authority", the results of systems of promotion used in the
public service have a considerable demonstration value and serve as models.
111. From the information available it appears that the mode of computing
seniority may involve a certain differentiation that affects the opportunities
of promotion of women. (Endnote 158) Certain interruptions of working life on
account of pregnancy or motherhood are not always taken into account in the
calculation of seniority. Where seniority is a material factor for purposes of
promotion, women workers whose employment has been interrupted for such
reasons will be penalised to the extent that their seniority in the service or
undertaking is curtailed by the period of the interruption. In several
countries specific provisions have been enacted to rectify such indirect
discrimination; these state that a period of absence from work on account of
childbirth or pregnancy or on account of sickness due to pregnancy or
childbirth is to be treated as a period of employment for purposes of
advancement in the occupation. (Endnote 159)
112. In the context of efforts to promote equality of opportunity and
treatment in employment, the concept of security of tenure denotes in effect
the guarantee that dismissal must not take place on discriminatory grounds,
but must be justified by reasons connected with the worker's conduct, his or
her ability or fitness to perform his or her functions, or the strict
necessities of the operation of the undertaking concerned. The question of the
ending of the employment relationship is dealt with in the Termination of
Employment Convention (No. 158) and the Recommendation (No. 166), 1982 on the
same subject. (Endnote 160) The Convention applies to all branches of economic
activity and to all employed persons, except workers engaged for a specified
period, or for a period of probation, or on a casual basis for a short period,
(Endnote 161) and it provides that the employment of a worker shall not be
terminated unless there is a valid reason for such termination connected with
the capacity or conduct of the worker or based on the operational requirements
of the undertaking, establishment or service. (Endnote 162) Pursuant to
Article 5(d) the following, inter alia, do not constitute valid reasons for
termination: "race, colour, sex, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or social origin".
In some countries, the dismissal of a worker on the discriminatory grounds of
political opinion or religion is void. (Endnote 163)
113. A distinction must be drawn between individual dismissals and collective
dismissals or redundancies for economic reasons. In the latter case, the
protection against discrimination should cover indirect discrimination that
may be due to the criteria specified for the purpose of determining the order
of redundancies; such criteria are in many cases specified in collective
agreements. In that respect it would be necessary to ensure that apparently
neutral terms and conditions that are applicable without differentiation do
not lead to indirect discrimination affecting a category of persons
distinguishable by one of the grounds referred to in the Convention. The
labour codes of several African countries specify criteria of selection in the
event of redundancy for economic reasons: skill and seniority are mentioned,
but so far as seniority is concerned, the number of years of service is
increased by one year for married persons and by an additional year in respect
of each dependent child. (Endnote 164) In one European country which has
ratified the Convention, the legislation concerning redundancies provides that
the employer is to make a "social selection" among workers in identical
circumstances in cases where redundancies are unavoidable in consequence of a
restructuring or partial closure of the business. The criteria for this
selection are, essentially, age, length of service, dependants, and ability to
obtain alternative employment. In such situations, cases of inequitable
treatment between the sexes may occur if too much weight is given to seniority
in so far as, statistically, women have less seniority than men. (Endnote 165)
In Australia a tribunal ordered a company to recalculate the level of
seniority of some women workers who claimed that the company's practices were
discriminatory in hiring and in the retrenchment of women due to the company's
policy under which women were hired last and fired first. (Endnote 166) Such
treatment may also occur by reason of family circumstances and of the weight
given to the idea that a woan's earnings are merely a "supplementary income"
in a household where the man is working and is regarded as the head of the
household. (Endnote 167) Agreements that stipulate that married women or women
who are not heads of household may be declared redundant first would be
inconsistent with the Convention. Many labour codes contain provisions that
declare void, inter alia, any clauses in collective agreements that conflict
with the principle of equality. Nevertheless, in this field, in which the
contractual freedom of the parties prevails, the co-operation of employers'
and workers' organisations must be sought with a view to eliminating any
factors of indirect discrimination that might appear in collective agreements.
In Italy the legislation provides that the quantitative male-female ratio may
not be modified so as to prejudice women in the course of a company's
reorganisation. (Endnote 168) Such a measure, by establishing a "floor", is
designed to forestall the possibility that the criteria for deciding which of
the workers are to be declared redundant might be based directly or indirectly
on sex, even though the measure does not explicitly state that potentially
discriminatory action affecting specific persons is prohibited.
114. A provision fixing a different age of mandatory retirement for men and
women is interpreted as discriminatory in some countries and as a protective
measure in others. (Endnote 169) In Japan the Supreme Court has upheld the
claims of female employees whose employment had been terminated because they
had passed the mandatory retirement age fixed in the work rules of an
undertaking which prescribed a different age of retirement for men and women;
the female plaintiffs contended that the rule in question was discriminatory
and hence inconsistent with the Constitution and the legislation. (Endnote
170) The Court of Justice of the European Communities has ruled that a
contractual clause in conditions of employment that provides for termination
of employment by reason of retirement and that differentiates between the
sexes is discriminatory. The Court held that the discrimination concerned the
fixing of an age limit with respect to the termination of an employment
relationship within the meaning of article 5 of Directive 76/207/EEC, and not
the consequences of the fixing of an age limit for the purpose of social
security benefits within the meaning of article 7 of Directive 79/7/EEC.
(Endnote 171)
115. One specific aspect -- important for its practical consequences -- of
security of tenure is protection against measures of reprisal taken with
respect to a person who lodges a complaint with the appropriate body, or who
institutes proceedings to enforce his or her rights in the matter of equality
of treatment and opportunity, or who is a party to such proceedings, e.g., as
a witness. (Endnote 172) This protection may be provided for in general
provisions forbidding the use of measures of retaliation for the purpose of
preventing workers from exercising their rights. (Endnote 173) An express
provision protecting workers against dismissal by reason of the lodging of a
complaint or the institution of proceedings concerning cases of discrimination
based mostly, if not always, on grounds mentioned in the Convention appear in
the legislation of some countries. (Endnote 174) As a general rule the
specific provisions enacted cover only certain grounds of discrimination, such
as sex (Endnote 175) or race, (Endnote 176) and in some cases they deal with
discrimination only in so far as it may affect some particular aspect of the
conditions of employment, such as equality of remuneration for men and women.
(Endnote 177) Article 7 of the Directive of the Council of the European
Communities on the implementation of the principle of equal treatment for men
and women provides: "Member States shall take the necessary measures to
protect employees against dismissal by the employer as a reaction to a
complaint within the undertaking or to any legal proceedings aimed at
enforcing compliance with the principle of equal treatment. (Endnote 178) In
some of the member States of the EEC dismissal by way of reprisal is unlawful
and may, pursuant to the provisions concerning equality of opportunity and
treatment, be punishable by a fine and give rise to an order for the payment
of cash compensation. (Endnote 179) In other cases, a notice of dismissal
given by way of reprisal is deemed to be void and the employee may obtain
reinstatement; if the employee, or in some cases the employer, refuses
reinstatement, the employer is ordered to pay compensation. (Endnote 180) n
Ireland, an employer who dismisses an employee solely or mainly because that
employee did in good faith anything specified in the provisions concerning
equality in employment is guilty of an offence and liable to a fine. (Endnote
181) If after investigation the court is satisfied that the complaint is well
founded it may order the employee's reinstatement or re-engagement and direct
the employer to pay compensation equivalent to not more than 104 weeks'
remuneration. (Endnote 182)
116. In some cases political opinion is taken into account in connection with
the termination of the employment relationship or with dismissal from the
public service. (Endnote 183) Measures of termination or dismissal have been
adopted under special provisions enacted shortly after a military coup d'état
(Endnote 184) or under emergency powers. (Endnote 185) In Czechoslovakia
workers in various undertakings have been dismissed because they had signed or
expressed support for a document criticising government policy; the fact of
signing or expressing support for such a document is hardly capable of
justifying exceptions to the principal protection accorded by the Convention
as regards political opinion. (Endnote 186) In the Federal Republic of
Germany, legislative and other provisions concerning the duty of faithfulness
to the free democratic basic order are applied to exclude from service
officials and employees in the absence of specific conduct inconsistent with
loyalty, e.g., for taking part in the activities of lawful political parties.
(Endnote 187)
117. In the Islamic Republic of Iran persons adhering to a certain religious
belief are excluded from the public service. Measures have been adopted for
dismissing members of the Baha'i religion also from public and private
enterprises.
118. With regard to equality of remuneration it should be recalled that the
principle of equal remuneration for men and women workers for work of equal
value is laid down in the Equal Remuneration Convention (No. 100),
supplemented by Recommendation No. 90 both of 1951, on the same subject. In
its General Survey of 1986 on equal remuneration the Committee has pointed out
that equal evaluation of work and equal entitlement of women and men to all
elements of remuneration cannot be achieved within a general context of
inequality, and that the connection between the principle of Convention No.
100 and that of Convention No. 111 is paramount in this respect. (Endnote 188)
The gap between the earnings of men and those of women with comparable
qualifications is attributable mainly to such factors as the likelihood of
women to be employed in the least well paid branches of activity and
occupations or the differences between women's and men's occupational careers
which follow from the difficulty of reconciling work and motherhood, rather
than to differences of remuneration between men and women doing work of equal
value. Measures to put an end to the segregation of jobs, to deal with the
problem of the supposedly female occupations or to ensure equality for workers
with family responsibilities are steps towards the implementation of
Convention No. 111 and Convention No. 156. Prominent among further measures
that may contribute to equality of remuneration are those that ensure to a
worker employed under a temporary contract of employment remuneration equal to
that which the enterprise using her or his services would pay, after a
probationary period, to a worker with equivalent qualifications who holds an
equivalent job. (Endnote 189)
119. The principle of equal remuneration for work of equal value without
discrimination on the grounds of race, colour, national extraction, social
origin, religion, or political opinion is laid down in many labour codes, at
least as regards some of these grounds. As for certain aspects of existing
differences in wages between men and women, it appears that there are many
extraneous causes of inequality, i.e. differences in pay merely reveal a more
general situation that is traceable to access to education, access to
vocational guidance, etc.
120. In the course of examining the application of the Convention the
Committee has considered a number of measures adopted in the field of social
security in connection with employment. (Endnote 190) Bearing in mind Article
5 of the Convention, any distinction made on the basis of sex which is not
justified by special measures of protection or assistance either provided for
in other International Labour Conventions or Recommendations, or generally
recognised as necessary, should be eliminated. (Endnote 191) In the field of
social security in connection with employment, cases of discrimination on
grounds other than sex have also been noted by the Committee. (Endnote 192)
Under the procedure for the supervision of ILO standards a number of
governments have supplied particulars, in their reports on the application of
Convention No. 111, of measures adopted in order to ensure equal treatment for
men and women in the field of social security in connection with employment.
The Committee has noted with satisfaction the various adjustment and
harmonisation measures adopted in some countries in order to eliminate direct
or indirect discrimination based on sex or marital status. (Endnote 193) These
adjustment and harmonisation measures concern, inter alia, the concepts of
"head of family" and "dependants", differences in the conditions governing the
grant of certain benefits, differences as regards the burden of proof and
differences in the mode of calculating, and in the amount, of certain
benefits. The Council of the European Communities has adopted two Directives
on the implementation of the principle of equal treatment for men and women in
matters of social security. (Endnote 194) Directive No. 79/7/EEC applies only
to statutory social security schemes (other than those concerning survivors'
benefits and family allowances). It requires that there must be no
discrimination based on sex, either directly or indirectly, by reference in
particular to marital status or family status, as regards both contributions
and benefits. It provides in addition that th application of the principle of
equal treatment shall be without prejudice to the provisions relating to the
protection of maternity. The other Directive (No. 86/378/EEC) applies to the
working population as a whole (including self-employed workers) and covers all
compulsory or optional schemes that are intended to supplement or replace the
statutory schemes. The scope of the principle of equality covers the field of
application of the schemes, the conditions of access to the schemes,
contributions, and the calculation of benefits. The Directive makes provision
for measures of implementation: for measures declaring void any discriminatory
provisions, for measures prohibiting the approval or extension of
discriminatory provisions, for the establishment of appellate bodies, and for
measures of protection against reprisals.
121. Measures for the protection of the worker's privacy play a part in the
application of the principle of equality of opportunity and treatment in
employment and occupation. The legislation of Italy contains a number of
provisions for protecting certain aspects of the worker's private life that
might lead to discrimination in employment; under these provisions it is
unlawful for an employer to carry out or cause to be carried out inquiries
into a worker's opinions or beliefs or to carry out checks (otherwise than
through specialised bodies) of a worker's physical aptitude for work. (Endnote
195) In some of the states of the United States legislation has been enacted,
or special provisions have been added to existing legislation, concerning the
right of workers to consult their personnel files kept by the employer.
(Endnote 196) Most of these provisions apply to the public and to the private
sector. In the event of disagreement concerning some data appearing in the
file, the worker may in certain cases ask for rectification. If the worker and
the employer cannot reach agreement concerning the data in dispute, or the
possible amendment of the data, some legislative provisions authorise the
worker to submit a statement in writing or an explanation which will be
entered in the file. (Endnote 197) In some cases, considerations concerning
the protection of the employee's private life have led to the adoption of
measures for prohibiting the use of certain kinds of tests in connection with
the employment relationship, for example the use of lie detection tests.
(Endnote 198) Generally, such provisions specify that the worker has the right
to refuse to submit to a lie detection test, or that no one may require a
worker or a candidate for employment to submit to such a test, or else declare
it unlawful to interrogate a worker about, e.g. his or her religious beliefs
or political affiliation.
122. From the information available it is apparent that in recent years there
has been a great increase in part-time work in the industrialised market
economy countries. (Endnote 199) Part-time employment is concentrated mainly
in such sectors as the service industries, which generally account for more
than half of the part-time workers. It is particularly women workers, (Endnote
200) young workers and older persons who are engaged in part-time employment.
Because of certain constraints affecting women who have family
responsibilities, and also because they have less latitude as regards the job,
hours of work and the place of work -- particularly if they have difficulty in
arranging for their children to be taken care of at a reasonable cost -- there
is reason to believe that in many cases part-time employment is involuntary.
(Endnote 201) In most cases part-time employment is characterised by lack of
security of tenure, (Endnote 202) irregular working hours, frequently work at
night or on public holidays without the supplements payable in such cases to
full-time workers, no pay increase according to seniority, no entitlement to
paid leave or to other social benefits. (Endnote 203) In view of these
problems a number of countries have taken action to protect, in law and in
practice, the interests of part-time workers and to ensure observance at least
of the principle of proportionality in social matters. (Endnote 204) No
information is available on which to base an opinion concerning the
relationship between this question and the application of the Convention in
other countries. (Endnote 205)
123. Legislative provisions dealing with health and safety have as their
object a reduction of all hazards for all workers, and lay down strict
standards which apply regardless of personal circumstances. It is the duty of
the undertaking to make every reasonable effort to create a safe working
environment and safe working conditions. In Canada a tribunal having
jurisdiction in human rights cases substantiated the claim of a complainant
who wished to work without a hard hat, for the wearing of a hard hat was
against his religious beliefs. The complainant argued that his refusal to wear
a hard hat occasioned no risk to the public or to his fellow workers and that
such risk as there might be was acceptable to him. The tribunal held that an
individual was not obliged to compromise his or her religious principles
unless there was justification for doing so, and that a safety policy
conflicting with human rights legislation would not be reasonable within the
meaning of the Labour Code. (Endnote 206) The Human Rights Commission has used
the concept of "the dignity of risk" to ensure that workers or persons seeking
employment are allowed a certain degree of self-determination if the job
involves risks to themselves that they are willing to take. The purpose of
this concept is to temper the general approach of provisions concerning health
and safety. The Human Rights Commission considers that it is possible to
introduce a greater degree of self-determination into employment practices
without posing a threat to the hard-won principle of a safe workplace. Where
an individual is capable of performing a job, does not pose a risk to others
and has made an informed choice that he or she is prepared to accept a degree
of personal risk that does not entail unduly severe consequences for the
employer, that individual should be given a chance. The alternative would be
to accept barriers to employment, in the form of indirect discrimination, for
certain persons who otherwise satisfy the requirements inherent in a
particular job. (Endnote 207)
Endnote 25
See e.g. United Kingdom, 1975 Act, s. 22.
Endnote 26
Chile, Act No. 12.927 concerning the security of the State, and university
Decree No. 003340 of 13 September 1984 making disciplinary regulations
applicable to the students of the University of Chile, s. 9(2); the Committee
has pointed out, with reference to the said Act, that the protection against
discrimination based on political opinion implies that the scope of the
Convention covers the expression of opposition to established political
principles that falls short of the use of or incitement to violence.
Endnote 27
The Vocational Guidance Recommendation, 1949 (No. 87) gives the following
definition: the term "vocational guidance" means assistance given to an
individual in solving problems related to occupational choice and progress
with due regard for the individual's characteristics and their relation to
occupational opportunity. Vocational guidance is based on the free and
voluntary choice of the individual; its primary object is to give him or her
full opportunity for personal development and satisfaction from work, with due
regard for the most effective use of national manpower resources.
Endnote 28
See e.g. USSR, ss. 2.1 and 2.2 of the regulations governing the territorial
vocational guidance centres for young persons.
Endnote 29
According to Paragraph 11(b) of the Recommendation, Members whose vocational
guidance programmes are in the early stages of development should aim at
assisting those groups of the population which require help in overcoming
traditional restrictions on their free choice of education, vocational
training or occupation. Paragraph 54(2)(c) provides that measures should be
taken to promote equality of access for girls and women to all streams of
education and to vocational training for all types of occupations, including
those which have been traditionally accessible only to boys and men, subject
to the provisions of international labour Conventions and Recommendations.
Endnote 30
Australia: The project undertaken by the Commonwealth and Western Australian
governments involves sending women working in non-traditional occupations to
towns throughout the country to talk to schools and community groups about
their apprenticeship and job experience. ILO: Social and Labour Bulletin,
1/87, p. 167. See also Norway: "Information project" launched in two counties.
In its report the Government states that the power of examples can be very
important in future guidance. Denmark: Introductory work experience courses
are intended to provide a firm basis for the choice of occupations both in
sectors where women are traditionally represented and in those where they are
not. A publicity drive to urge girls to take up occupations traditionally
chosen by men uses the slogan "Women should stop being trained for
unemployment". Iceland: s. 10 of the Equal Status and Equal Rights of Women
and Men Act, No. 65/1985, provides that in giving information about
educational and training opportunities schools should endeavour to change the
traditional choice of employment and education as between men and women.
Endnote 31
The Governments of Iceland and Norway refer to national projects undertaken in
this context. Iceland: Girls have been encouraged to try new occupational
areas and to acquire professional skills in areas of industry and technology
where they currently constitute the majority of the unskilled labour force.
Endnote 32
The concept of "independent occupation" may cover -- according to the country
concerned and depending on the diversity of economic and social systems -- a
more or less broad field of activity the primary common feature is, as a rule,
that the worker's activity is not under the control of an employer to whom he
or she is bound by a contract of employment or by virtue of his or her status
as an official.
Endnote 33
Record of Proceedings, ILC, 40th Session, Geneva, 1957, Appendix X, Seventh
item on the agenda: Discrimination in the field of employment and occupation,
paras. 17-19.
Endnote 34
ILO: Discrimination in the field of employment and occupation, ILC, 42nd
Session, Report IV(1), Appendix.
Endnote 35
Record of Proceedings, ILC, 42nd Session, Geneva, 1958, Appendix VI, Fourth
item on the agenda: Discrimination in the field of employment and occupation,
paras. 15 and 16.
Endnote 36
Acts Nos. 57 and 58 amending the Working Environment Act.
Endnote 37
Ss. 1(3) and 2 of Act No. 8 to promulgate a Workers' Charter. Since the entry
into force of that Charter the principle of equality of treatment has been
extended to cover sports professionals (Royal Decree No. 318/1981), commercial
agents (Royal Decree No. 2033/1981) and work performed at home on behalf of
others (Royal Decree No. 1424/1985).
Endnote 38
Labour Code, ss. 2 and 186, LS 1967-Rwa. 1.
Endnote 39
United States, Civil Rights Act, 1964, as amended by the Equal Employment
Opportunity Act, 1972, s. 701(b): persons employing fewer than 15 employees,
Indian tribes, and tax-exempt private membership clubs do not come within the
meaning of the term "employer". Some state legislation has adopted a similar
limitation in their own enactments (Texas, Anti-Discrimination Act, 1983),
others have specified a lower figure (North Dakota, Human Rights Act, 1983,
fixes the limit at ten employees), while others have removed the limitation
altogether.
Endnote 40
See Council of Europe, Case law relating to the European Social Charter --
Supplement No. 2, Strasbourg, 1987, p. 1: "The question of the non-observance
of the principle of equal treatment (in the case of employment in private
households or in small undertakings with not more than five employees) can
also not be regarded as consistent with Article 1, paragraph 2 of the
Charter". See also Court of Justice of the European Communities, Judgement of
8 November 1983, Commission of the European Communities v. United Kingdom,
Case 165/82: Whilst Article 2(2) of Directive 76/207 allows Member States to
exclude from the field of application of the Directive those occupational
activities for which, by reason of their nature or the context in which they
are carried out, the sex of the worker constitutes a determining factor, the
fact that a law of a Member State excludes from the prohibition of
discrimination between sexes all kinds of employment in private households or
in small undertakings with not more than five employees nevertheless goes
beyond the objective which may be lawfully pursued within the framework of the
provision in question, by reason of the generality of the exclusion.
Endnote 41
United Kingdom: under s. 6(3) of the 1975 Act, it did not apply to employment
for the purposes of a private household nor to undertakings where the number
of persons employed does not exceed five; on 7 November 1986 Parliament
approved an amendment (Sex Discrimination Act 1986) repealing these exceptions
and adding to the notion of "genuine occupational qualification".
Endnote 42
Afghanistan, Saudi Arabia, Sierra Leone, Swaziland.
Endnote 43
Swaziland.
Endnote 44
Australia, RCE 1987, p. 355; Netherlands, RCE 1983, p. 221.
Endnote 45
A similar question was considered by the International Labour Office on an
earlier occasion in response to a request by a government concerning the
application of certain provisions of the Hours of Work (Commerce and Offices)
Convention, 1930 (No. 30) to all officials. The government had expressed the
view that, owing to their special status, officials could not be deemed to be
either workers or employees and that consequently they did not come within the
scope of the international labour Conventions. In his reply, dated 14 October
1931, Albert Thomas, Director-General of the Office, stated that where a
Convention is applicable to persons employed in public undertakings or
establishments no distinction was made according to the legal nature of the
rules governing their conditions of service. ILO, Official Bulletin, Vol.
XVII, 1932, pp. 119-123.
Endnote 46
For example, in the United Kingdom, both the Sex Discrimination Act of 1975
and the Equal Pay Act of 1970, LS 1970-UK 1, 1984-UK 1A, define employment as
meaning "employment under a contract of service or of apprenticeship or a
contract personally to execute any work or labour". The Employment Appeal
Tribunal held that this definition covered self-employed persons who
personally executed work or labour under a contract and was not limited to
persons employed under a contract of service. The judgement confirmed that
those who engage the talents, skills or labour of the self-employed should
ensure that the terms are equal for men and women and do not discriminate
between them. Employment Appeal Tribunal, 13 February 1984, Industrial
Relations Law Reports, London, 1984, p. 227.
Endnote 47
See, e.g., in the USSR, s. 1 of Act No. 6050-XI of 19 November 1986 on
individual enterprise contains a definition of this type of activity; see LS
1986-USSR 1.
Endnote 48
See International Labour Conference, 71st Session, Report VII, Equal
Opportunities and Equal Treatment for Men and Women in Employment, Geneva,
1985, p. 11.
Endnote 49
Agrarian Reform Act, s. 79a.
Endnote 50
See e.g. Australia, 1984 Act cited above, s. 24.
Endnote 51
See e.g. Australia, 1984 Act, s. 22, prohibiting discrimination on the basis
of sex, marital status or pregnancy as regards access to services; "services"
include banking and insurance services and availability of security, loans and
credit; Canada: Canadian Charter of Rights and Freedom, 1982 (discrimination
on unlawful grounds: race, national or ethnic origin, colour, religion, sex,
age, mental or physical disability), s. 5; United States: Alaska, Human Rights
Act, s. 18.80.250; Connecticut, Human Rights Act, ss. 46a-65 and 66; New York,
Human Rights Act, s. 296a; South Dakota, Human Relations Act, s. 20.13.21,
Washington, Anti-Discrimination Act, ss. 49.60.175 and .176; France, s. 416 of
the Penal Code (family status, national origin, sex, moral conduct, actual or
alleged belonging to or not belonging to an ethnic or racial group or adhering
to a particular religion); United Kingdom, 1975 Act, s. 29 (sex, married
persons) and 1976 Act, s. 20 (race, colour, nationality, ethnic or national
origin).
Endnote 52
See e.g. Canada, Canadian Charter of Rights and Freedoms, s. 6.
Endnote 53
Australia, 1984 Act cited above, s. 17; United Kingdom, 1975 Act, ss. 10 and
11.
Endnote 54
France, s. 416-1 of the Penal Code (Act No. 85-772 of 25 July 1985). Under
this section, it is a punishable offence for anyone, whether by act or
omission, to hamper the carrying on of any economic activity whatsoever under
conditions that are normal for any individual, by reason of that individual's
family status, national origin, sex, moral conduct, actually or allegedly
belonging to an ethnic or racial group or adhering to a particular religion,
or under conditions that are normal for a body corporate by reason of the
character of the members or of some of the members of that body corporate.
Under s. 187.2 of the Penal Code the said offence is punishable if committed
by a person acting on behalf of a public authority or by a citizen in the
performance of a public service; the provisions of these two sections are not
applicable if the acts referred to are in conformity with directives issued by
the Government in the context of its economic or trade policy or in pursuance
of its international commitments.
Endnote 55
RCE 1975, p. 164.
Endnote 56
EEC, Council Directive of 11 December 1986 on the application of the principle
of equal treatment between men and women engaged in an activity, including
agriculture, in a self-employed capacity, and on the protection of
self-employed women during pregnancy and motherhood. Official Journal of the
European Communities, No. L.359/56, art. 4. The scope of the Directive covers
self-employed workers, viz. any person who carried on, under conditions
specified by the national law, any gainful activity for his or her own
account, including farmers and the liberal professions, and spouses who are
not remunerated and are not partners who participate in the activity in
question (art. 2). See also, in the context of co-operation (with developing
countries) art. 123 of Title VIII of the Third Lomé Convention under which
co-operation supports the efforts of the ACP States, particular attention
being given to access by women "to more advanced technology, to credit and to
co-operative organisations, and to appropriate technology aimed at alleviating
the arduous nature of their tasks".
Endnote 57
For example, in France the bar association, the medical association, the
society of architects, and like professional bodies.
Endnote 58
See e.g. Ghana, s. 42 of the PNDCL Act of 1982 (establishment of a public
legal service to which all lawyers must belong, and establishment of a
committee of this service with powers to rule on any question of appointment,
promotion, discipline, dismissal, etc.).
Endnote 59
Australia, ibid., s. 18; New Zealand, s. 21 of the Human Rights Commission
Act, 1977; United States, California, s. 12944 of the Fair Employment and
Housing Act; United Kingdom, 1975 Act, ss. 12 and 13.
Endnote 60
Denmark: s. 5 of the Equality between the Sexes Act, No. 161 of 12 April 1978,
which provides "The obligation to observe equality of treatment shall also be
incumbent on any person making arrangements or taking decisions in connection
with ... vocational training, etc., for such employment (self-employment) or
with the conditions in which such employment may be carried on."
Endnote 61
See e.g. USSR, ss. 3, 6 and 7 of Act No. 6050-XI cited above.
Endnote 62
See as regards the EEC, the directives concerning the equivalence of diplomas
in the Member States of the Community (doctors, nurses, dentists, veterinary
surgeons, midwives, pharmacists, architects) and the proposed regulations for
the legal professions, R. Waengenbaur, "Free movement in the professions: The
new EEC proposal on professional qualifications", Common Market Law Review,
Vol. 23, 1, 1986, pp. 91-109.
Endnote 63
ILO, Discrimination in the field of employment and occupation, ILC, 40th
Session, 1957, Report VII(1), p. 7.
Endnote 64
The Employment Service Convention (No. 88) and the Recommendation (No. 83),
1948 on the same subject contain provisions concerning placement services
operated by the responsible authority. Paragraph 12(c) of the Recommendation
provides that the employment service "should not, in referring workers to
employment, itself discriminate against applicants on grounds of race, colour,
sex or belief".
Endnote 65
Standard regulations applicable to placement offices, annexed to Order No. 28
of 16 January 1987 of the State Committee of Labour and Social Affairs of the
USSR, s. 3.4.
Endnote 66
Suriname, s. 3(2) of the Labour Exchange Act (religion, political and social
beliefs, membership or non-membership in an organisation; no reference is made
to the grounds of sex or race).
Endnote 67
Federal Republic of Germany, under Regulation No. 167/81 of 15 September 1981
applicable to the Federal Employment Agency, offers of employment or
apprenticeship must be communicated to applicants without restriction as to
sex. In practice, direct discrimination on grounds of sex occurs where an
employer's offer of employment is specified as being open only to a man or to
a woman. In such cases, the Regulation provides that the officer of the
placement service must draw the employer's attention to s. 611 of the Civil
Code, under which differential treatment according to sex is permitted only if
being of the particular sex is an essential condition for the performance of
the activity in question. If despite this warning the employer does not change
the terms of his or her offer, the responsible officer shall enter the offer
in the statistics. These difficulties have been removed to a large extent by
changes in the forms for apprenticeship in 1984: henceforth the employer must
specify the sex in the column entitled "Special requirements". In 1985, in the
area served by the Federal Employment Agency in Hamburg, 60 per cent of the
offers of apprenticeship were open to both sexes (in 1984 the proportion had
been 15 per cent), 30 per cent to men only (63 per cent in 1984) and 10 per
cent to women only (22 per cent in 1984); see also Benin, Denmark, Iraq, Mali,
Sierra Leone, Yugoslavia.
Endnote 68
Mexico, Morocco.
Endnote 69
Israel; in addition, any breach of s. 42 (prohibiting discrimination) of the
Employment Service Act constitutes an offence. RCE 1979, p. 185.
Endnote 70
Provision is made for three such cases: the worker is either not physically or
mentally able to perform the activity in question; the worker lacks the
professional know-how or does not fulfil the conditions required or imposed by
the nature of the job; the recruitment of the worker would conflict with the
general regulations concerning the establishment of an employment or
apprenticeship relationship. See also USSR, Regulations concerning the
employment sections of the executive committees of the soviets of people's
deputies for the territories and regions, adopted by the Council of Ministers
of the RSFSR on 1 October 1982, art. 51.
Endnote 71
Denmark, Notification concerning private employment agencies dated 11 August
1986, issued pursuant to the Act of 8 June 1978. It is forbidden to record any
particulars of the race, religion, political activity, sexual practices,
criminal record or drug use of a person who applies for employment. Under s. 2
of the Notification, personal particulars (colour, membership in association,
health, social activities, etc.) are not recorded unless they are necessary
for recruitment evaluation and the applicant is told about them, or unless,
with the written consent of the applicant, they are sought by the agency for
the purpose of being recorded. The agency has a duty to inform the person
concerned, within four weeks, of the contents of the particulars recorded. The
person's consent may be withdrawn at any time.
Endnote 72
See e.g. Austria.
Endnote 73
General Survey 1963, para. 105.
Endnote 74
According to Articles 4 and 10 of the Fee-Charging Employment Agencies
Convention (Revised) (No. 96), 1949 the expression "placement services under
the direction of a national authority" includes -- for the countries which
have ratified the Convention -- both placement agencies conducted with a view
to profit and agencies not conducted with a view to profit.
Endnote 75
See e.g. in France the Répertoire operationnel de la main d'oeuvre (ROME);
United Kingdom.
Endnote 76
See above, the results achieved in the Federal Republic of Germany by a change
of the relevant forms, footnote 67.
Endnote 77
In this sense it cannot be regarded as on a par with the priority accorded to
a worker who may be entitled to reinstatement by an employer whose service he
or she had left owing to circumstances beyond his or her control, or to a
specific category of workers expressly mentioned in a legislative provision or
regulation as enjoying a privileged position for recruitment purposes,
generally by virtue of a quota (persons in receipt of a pension for war-time
service, veterans, handicapped workers). Such obligation, laid down in
legislation or regulations, to make room to a greater or lesser extent for the
employment of a specified category of persons (women, members of disadvantaged
groups, etc.) is used within the framework of Article 5, paragraph 2, of the
Convention. See Chapter III, Section 3 below.
Endnote 78
The Court of Justice of the European Communities, in its judgement of 10 April
1984 in Case No. 79/83, Harz v. Deutsche Tradex GmbH did not accept the
argument that the Directive concerning equal treatment created a right for a
person to have a job. By implication, the Court expressed its preference for
the employer's freedom of contract, subject however to the candidate's right
to have his or her application for the post considered equitably.
Endnote 79
Finland, Act on Equality between Women and Men, No. 609/86 of 8 August 1986,
s. 10; Norway, Equality between the Sexes Act, No. 45 of 18 June 1978, s. 4;
Sweden, Act of 1979 respecting equality of women and men in employment, as
amended, s. 5A.
Endnote 80
See e.g. Portugal, Legislative Decree No. 392/79, s. 7(2); see also Chapter
III, Section 1 below.
Endnote 81
See above (Chapter I, Section 3, para. 44.)
Endnote 82
See e.g. Bulgaria, Decision No. 16 of 24 February 1987 concerning the
documents to be produced for the purpose of the conclusion of a contract of
employment (passport or identity document, curriculum vitae, evidence of
specialised skill, extract from police record, permit of labour inspectorate
if the worker is under the age of 18 years, medical certificate and personal
health record).
Endnote 83
For example, Italy, Act No. 300 of 20 May 1970 respecting the protection of
workers' freedom and dignity, LS 1970-It. 2, s. 8. See also France: the
Government has stated (Minister's reply No. 13.309, Journal Officiel de
l'Assemblée Nationale, 16 March 1987) that the sole object of the information
requested of employees for purposes of recruitment must be to make it possible
to evaluate the occupational qualifications of candidates; the particulars
requested must be directly related to the post which the person concerned has
applied for.
Endnote 84
See e.g. Michigan, Art. 2, s. 205a of the Civil Rights Act (prohibition on
obtaining information orally or through a recruitment form, prohibition on
setting up or keeping files dealing with religion, race, colour, national
origin, height, weight, marital status); Pennsylvania, s. 955(b)(1) of the
Human Relations Act (prohibition on obtaining, keeping and using information
concerning colour, race, religious belief, family origin, sex, national
origin, past physical or mental handicaps); Rhode Island, s. 28-5-7D of the
Equitable Practices in Employment Act, etc.
Endnote 85
For example, United States, Connecticut, s. 46a-80 of the Human Rights Act
(prohibition on disclosing information about detention not followed by
conviction); Illinois, s. 2-103 of the Human Rights Act (information about
detention).
Endnote 86
See below, para. 121.
Endnote 87
RCE 1986, p. 226; see also Chapter I, Section 3, para. 59.
Endnote 88
Australia, Victoria, ss. 18(1) and 27B of the Equal Opportunity Act 1977 as
amended by the Equal Opportunity (Discrimination against Disabled Persons) Act
1982 (discrimination on the basis of sex, marital status, existing or past
physical or mental impairment), LS 1977-Aust. 1 and LS 1982-Aust. 1; Canada,
s. 8 of the Canadian Human Rights Act (unlawful grounds of discrimination:
race, national or ethnic origin, colour, religion, age, sex, marital status,
family status, disability); United States, s. 704(b) of the Civil Rights Act
1964 (unlawful grounds of discrimination: race, colour, religion, sex,
national origin); France, s. 416(3) of the Penal Code as amended by Act No.
83-635 of 13 July 1983 (origin, sex, moral conduct, family status, membership
of a particular ethnic, national, racial or religious group; as regards sex,
the ban on making an offer of employment conditional on the sex of the
applicant covers the private sector as well as the entire public service; in
addition to sentencing an offender to the penalty applicable, the court may
direct that its judgement be posted and published).
Endnote 89
Canada, British Columbia: in the case of Hope v. Gray Grant Publishers (1981,
2 C.H.R.R.D/256), the Inquiry Office directed the publisher to discontinue the
publication of discriminatory advertisements but also to publish a notice in
the classified advertisements section stating that under the Province's human
rights legislation such discriminatory advertisements were prohibited.
Endnote 90
Federal Republic of Germany, s. 611(b) of the Civil Code as amended by the Act
of 30 August 1980 (sex); Australia, s. 14 of the 1984 Act (sex, including
marital status and pregnancy); Denmark, s. 6 of the Act No. 161 (sex,
pregnancy, marital status, family status); Finland, s. 14 of Act No. 609 of 8
August 1986; Ireland, s. 8 of the Employment Equality Act 1977 (sex, marital
status); Italy, s.1(2) of Act No. 903 of 1977 (sex, family status, marital
status, pregnancy); Luxembourg, s. 3(1) of the Equality of Treatment Act 1981
(sex, marital status, family status); New Zealand, s. 1 of the Race Relations
Act 1971 (race, colour, ethnic origin of the person concerned or of his or her
relatives or of any associate of that person); Norway, s. 4 of Act No. 45
(sex, marital status, family status); Netherlands, s. 3(1) of the Equality of
Treatment for Men and Women Act (sex, marital status, family status);
Portugal, s. 7(1) of Legislative Decree No. 392/79 (sex, marital status,
family status); under s. 8 of Legislative Decree No. 491/85 of 26 November
1985 penalties are prescribed in respect of certain discriminatory practices,
such as the publication of notices of vacancies for posts intended only for
persons of one sex or the other and the institution of systems making job
descriptions or evaluations containing inequalities based on sex, see RCE
1987, p. 372; United Kingdom, s. 6(1) of the 1975 Act (sex, married persons).
Endnote 91
France: According to a survey carried out in 1982 by the Association pour la
formation professionnelle and the Centre d'études de l'emploi, out of three
women who had trained for a traditionally "male" occupation, only one works in
that occupation, the second works in a different occupation, and the third is
unemployed. The situation seems to be more favourable for employment as
technical workers, where one in two women works in the occupation for which
she trained. The basic difficulty in some occupations, e.g. electrical and
metal trades, lies in access to employment, as staff turnover is rather low.
The lukewarm welcome that awaits them explains why skilled female manual
workers are still knocking on the factory door. ILO, Social and Labour
Bulletin, 2/83, p. 283.
Endnote 92
For example, cleaning woman, repairman, hostess, watchman, etc.
Endnote 93
ILO, Social and Labour Bulletin, 4/83, p. 606; see also Hungary: women
predominate in the commercial and service sectors, whereas they are still in
the minority in the building, transport, communications and water supply
industries. The share accounted for by women in the working population
increased between 1970 and 1980, but the distribution of the female labour
force among the various economic sectors remained unchanged during that
decade, see Y. Vertes, The status of women in Hungary, National Council of
Hungarian Women, 1981; for an explanation ascribing this distribution of the
labour force to the fact that certain activities were reserved for women with
a view to facilitating their access to employment, the consequence being a
rapid "feminisation" of these activities where only women applied for
employment, see E. Gömöri, "Special protective legislation and equality of
employment opportunity for women in Hungary", International Labour Review,
Vol. 119, No. 1, Jan.-Feb. 1980; Yugoslavia: women account for 75.7 per cent
of the labour force in the medical and social services, for 78.7 per cent in
the banking sector and for 53.5 per cent in the educational and cultural
professions, CEDAW/C/5/Add. 18.
Endnote 94
See e.g. Austria: 45 per cent of women workers are employed in the service
sector, see Verdienstdifferentiale zwischen Männern und Frauen, Josef Christl,
November 1985; in Switzerland the proportion is 47 per cent, see "Congrès des
femmes USS", Revue syndicale, Mar.-Apr. 1983, No. 3/4, p. 60.
Endnote 95
California: W.T. Bielby and J.N. Baron, "A woman's place is with other women:
Sex segregation within organisations", in B.F. Reskin (ed.), Sex Segregation
in the Workplace: Trends, Explanations, Remedies, Washington, DC, 1984.
Endnote 96
Department of Employment, Employment Gazette, May 1984, pp. 199-209.
Endnote 97
See e.g. Bolivia: pursuant to s. 3 of the General Labour Act the female
workforce may not account for more than 45 per cent of the staff of the
enterprises or establishments, which by their nature, do not need a larger
female workforce; China: The Seventh Women's Congress of Beijing Municipality
stated that some factories and undertakings did not want to hire women workers
and had fixed a quota limiting recruitment of women to 30 per cent of the
workforce. The same thing, it was said, happened in training institutions,
some of which reportedly enrolled more male than female students, thus
contravening the regulations of the Ministry of Education, ILO, Social and
Labour Bulletin; 2/83, p. 281.
Endnote 98
Poland: On 3 March 1987 the Constitutional Court set aside a decision of the
Ministry of Health and Social Welfare which had fixed a 50 per cent quota for
the admission of women to medical schools, the object being to reduce the
over-representation of women in the medical professions; the reason given by
the Constitutional Court for its ruling was that the quota was incompatible
with the principle of the equality of citizens laid down in the Constitution
and inconsistent with the Higher Education Act of 4 May 1982. The Ministry was
obliged to rescind the decision concerning the quota; see also below, para.
101, France, for analogous provisions concerning the public sector.
Endnote 99
Spain, s. 14 of the Order of 21 February 1986 makes provision for a programme
of wage subsidies for the recruitment of women in occupations in which they
are under-represented; in Norway and Sweden subsidies have been payable since
1974 to employers who recruit persons of one sex to posts traditionally held
by persons of the other sex.
Endnote 100
As regards the United States, see B.F. Reskin and H.I. Hartmann (eds.) Women's
Work, Men's Work -- Sex Segregation on the Job, Washington, DC, 1986.
Endnote 101
Under Article 1, paragraphs 1 and 2(c) of the Employment Policy Convention,
1964 (No. 122), an "active policy designed to promote full, productive and
freely chosen employment ... shall aim at ensuring that ... there is ... the
fullest possible opportunity for each worker to ... use his skills and
endowments in a job ... irrespective of race, colour, sex, religion, political
opinion, national extraction or social origin".
Endnote 102
See ILO, General Survey of the Committee of Experts on the Application of
Conventions and Recommendations on the Abolition of Forced Labour, ILC, 65th
Session, 1979, Report III (Part 4B), paras. 133 to 141.
Endnote 103
E/CN.4/Sub.2/476/Add.4.
Endnote 104
ibid., para. 57(a): "... it was recognised that a special problem exists in
countries with indigenous populations who might be vulnerable to exploitation,
such as debt bondage and other slavery-like practices ...".
Endnote 105
Some ILO Conventions contain specific provisions for the protection of certain
categories of workers: the Recruiting of Indigenous Workers Convention, 1936
(No. 50), which requires that the recruiting of such workers should be
regulated and prescribes rules for avoiding recourse to pressure in the
recruitment; the Contracts of Employment (Indigenous Workers) Convention, 1939
(No. 64), and the Contracts of Employment (Indigenous Workers) Convention,
1947 (No. 86), which specify the conditions of form and of substance to be
observed in the conclusion of contracts between an employer and an indigenous
worker. In 1985 the Governing Body decided, subject to certain appropriate
guarantees, that reports should no longer be requested on these Conventions
because they appeared to have lost their relevance. If, however, the situation
should change in such a way that the one or more of these Conventions again
became relevant, the Governing Body would be free to call for the resumption
of detailed reports on their application. ILO, Official Bulletin, Vol. LXVIII,
1985, Series A, No. 3, p. 110. The Indigenous and Tribal Populations
Convention, 1957 (No. 107) and the Plantations Convention, 1958 (No. 110) also
contain provisions concerning the recruitment and employment of certain
categories of workers.
Endnote 106
Act No. 6001 of 19 December 1973 to make regulations applicable to Indians.
Endnote 107
Decree No. 103-84 of 27 February 1984.
Endnote 108
Presidential Decree No. 20255 of 24 May 1984.
Endnote 109
By virtue of s. 4(1) of the Bonded Labour System (Abolition) Act, 1976, that
system was effectively abolished and any person required to perform services
under that system was released from any obligation to perform such services.
The Act was amended in 1985 in order to speed up the identification and
release of agricultural workers still subject to such a system; see also RCE
1980, pp. 64 and 65, RCE 1984, pp. 78-81, and RCE 1986, pp. 85 and 86.
Endnote 110
See Federal Republic of Germany: In its decision of 22 May 1975, the Federal
Constitutional Court stated: "It is open to the State to require the
successful completion of a period of preparatory service as a prerequisite
both for state service as an official and for an independent profession, and
generally to organise it in such a way that the service may be performed in an
employment relationship under civil law or in a special relationship under
public law other than the relationship of an official. If it opts for a
preparatory service which must be performed under a relationship of official,
then for those who contemplate a profession outside state service it must
either offer an equivalent, non-discriminatory preparatory service which can
be performed without appointment as an official or include in its civil
service regulations provision for an exception allowing the preparatory
service to be performed, if desired, outside a relationship of official."
Report of the Commission of Inquiry appointed to examine the observance of
Convention No. 111 by the Federal Republic of Germany, ILO, Official Bulletin,
Vol. LXX, 1987, Series B, Supplement I, para. 207; see also para. 517.
Endnote 111
Bangladesh, s. 29 of the Martial Law of 1972, as amended in 1986; Guatemala,
art. 113 of the Constitution.
Endnote 112
Peru, s. 4 of Legislative Decree No. 276 of 6 March 1984 to enact the basic
law governing careers and remuneration in the public service.
Endnote 113
Australia, s. 33(3) of the Public Service Act, 1922, as amended by the Public
Service Reform Act, 1984, RCE 1987, p. 355 (political affiliation, race,
colour, ethnic origin, social origin, religion, sex, sexual preference,
marital status, pregnancy, age, physical or mental disability); Finland, s. 17
of the 1986 Act concerning officials (sex, age, political activity, trade
union activity); France, s. 6 of Act No. 83-634 of 13 July 1983 concerning the
rights and obligations of officials (political opinion, trade union views,
philosophical or religious opinions, sex, membership of an ethnic group).
Endnote 114
Tunisia, s. 11 of the Act of 12 December 1983 to issue public service
regulations; Switzerland: Laws concerning cantonal officials of the cantons of
Jura and Geneva.
Endnote 115
See e.g. Algeria, Decree No. 83-481 of 13 August 1983 authorising the
recruitment of persons of either sex to serve in national police, RCE 1985, p.
277; Belgium, Royal Order of 3 February 1981 opening to women all ranks and
functions in the Belgian armed forces, RCE 1983, p. 205; Côte d'Ivoire,
Interministerial Order No. 89 MJ.DSJ/FP of 6 July 1987 admitting females to
participate in competitive examinations for the recruitment of supervisors and
chief supervisors of prisons; Portugal, Legislative Decree No. 251/74 of 12
June 1974 admitting women to careers in local administrations, Legislative
Decree No. 308/74 of 6 July 1974 admitting women to careers in the diplomatic
service, and Legislative Decree No. 492/74 of 27 September 1974 admitting
women to service in the judiciary.
Endnote 116
Netherlands, Act of 2 July 1980 concerning equality of treatment in the public
service.
Endnote 117
Iceland, s. 12 of Act No. 65 of 1985 concerning equality of status and rights
of women and men; Italy, the 1977 Act cited above.
Endnote 118
ILO, General Survey of the Committee of Experts on the Application of
Conventions and Recommendations on the Application of the Equal Remuneration
Convention (No. 100) and Recommendation (No. 90), 1951, ILC, 72nd Session,
1986, Report III (Part 4B), paras. 199-215.
Endnote 119
Madagascar: s. 5(2) of Decree No. 61-225 of 19 May 1961, enacting rules for
labour inspectors, which had limited female inspectors to 10 per cent of the
total number of inspectors on account of the special conditions of physical
aptitude required for certain jobs, was repealed by Decree No. 78-225 of 24
July 1978, RCE 1979, p. 186. Section 6 of Act No. 79-014 of 16 July 1979
respecting the public service regulations repealed s. 8 of the earlier
regulations under which the employment of female staff in posts of
responsibility could be limited to 10 per cent, RCE 1980, p. 172. It would be
preferable, where a quota system is in force, to eliminate "ceiling quotas"
and to replace them by quotas that unambiguously fix a "floor".
Endnote 120
Finland, Act of 1975 to repeal Act No. 112/26 concerning the admissibility of
women to the public service; under the repealed Act it was formerly possible
to make provision by Decree for the appointment of persons of a particular sex
to certain functions.
Endnote 121
Benin, s. 12 of Ordinance No. 79-31 of 4 June 1979 to issue public service
regulations; Central African Republic, s. 6 of Ordinance No. 80/064 of 1980
providing fundamental guarantees for officials (nature of the functions);
Morocco, s. 1 of Dahir No. 1-58-008 of 24 February 1958 to issue public
service regulations (provisions to take account of special status); Chad, s. 9
of Act No. 21-PR of 10 July 1967 to issue public service regulations; Tunisia,
s. 11 of Act No. 83-112 to issue public service regulations (concerns the
nature of the functions).
Endnote 122
S. 7 of Decree No. 68-24 of 9 January 1968 governing the personnel of the
postal and telecommunication services; the Government has stated that these
provisions, which are intended to protect women, were prepared in consultation
with the Postal and Telecommunication Workers' Trade Union and that, at the
time, the exclusion of women was justified by the nature of the services
performed by the employees in question. The Government has stated that it
plans to repeal any discriminatory provisions, in the light of technological
developments and of the variety of the tasks carried out by postal and
telecommunication workers, as a consequence of which conditions have become
favourable for the admission of female workers.
Endnote 123
Decree No. 78-872 of 22 August 1978 concerning the recruitment of teachers. In
an initial ruling (24 November 1982, Confédération française démocratique du
travail) the Council of State expressed the view that the conditions for the
performance of the functions in question could no longer justify an exception
to the principle of non-discrimination, even though the exception might be
based on "the nature of the educational function". The Council stated that "by
reason of the tasks entrusted to pre-school and elementary school teachers in
the public service and of the possible psychological value for children at
that age of contact with both male and female teachers", the Government could
lawfully take the view that, in the event of an excessive imbalance between
the two sexes, "it might be justifiable, as an exception, to organise separate
examinations for men and women, by reason of the nature of the educational
function". In a second ruling (16 April 1986, Confédération française
démocratique du travail), the Council of State indicated that "it was the
intention of the legislature to permit separate recruitment in the exceptional
cases where the excessive predominance of members of the one or the other sex
would tend to be prejudicial to the operation of the public service and where,
consequently, being of the one or the other sex should be regarded as a
decisive condition for the performance of the services provided by the members
of the teaching staff". In its reasoning the Council relied on the concept of
the efficient operation of the public service as the basis for the decisive
prerequisite for the performance of the functions in question. The Commission
of the European Communities, for its part, had taken the view that the
provisions of the Decree of 22 August 1978 were inconsistent with Council
Directive 76/207 of 9 February 1976 on the implementation of the principle of
equal treatment for men and women.
Endnote 124
See e.g. France, s. 21 of Act No. 84-16 of 11 January 1984 to make regulations
governing the public service of the State.
Endnote 125
See e.g. Federal Republic of Germany: The Government has stated that the upper
age limit for entry into the public service has been raised to the age of 38
years for women who have brought up children; France, the Act of 9 July 1976
raised the age limit for entry into class A functions (or functions of the
same rank in local authorities or public establishments) to the age of 45
years in the case of women who have brought up at least one child.
Endnote 126
Iceland, s. 12 of Act No. 65 of 1985.
Endnote 127
See General Survey of 1986 on equal remuneration, para. 204.
Endnote 128
See e.g. Belgium: The Bureau of the Commission du travail des femmes, in its
opinion No. 44 concerning physical criteria for recruitment or promotion,
invited every public service to check whether the use of physical criteria
(physical characteristics and physical tests) was justified and to report the
results of the inquiry to the Bureau; Italy: pursuant to the provisions of Act
No. 874 of 13 December 1986 concerning limits of physical size for admission
to competitive examinations, a person's size cannot be regarded as a
non-discriminatory criterion. The Ministry of Labour has adopted a Decree (No.
295 of 16 December 1985) abolishing ergometric tests (based on muscular
strength) for candidates for employment in the State Railways; France: s. 21
of Act No. 84-16 of 11 January 1984 to make regulations governing the public
service of the State provides that "where physical tests are prescribed for
the purpose of access to a particular branch of the public service, different
tests or gradings varying according to the sex of the candidate may be
provided for, subject to prior consultation with the technical joint
committees". In such instances, the desire for equality should not lead to a
uniformity of tests or gradings that might introduce an element of indirect
discrimination.
Endnote 129
See e.g. France: By virtue of s. 16 of the Decree of 4 May 1972 the Minister
of Justice is responsible for drawing up the list or candidates authorised to
take part in the competitive examination for admission to the Ecole Nationale
de la magistrature. The exercise of the Minister's power is subject to
supervision by the administrative court. Cf. Council of State, 18 March 1983,
Mulsant: "Inasmuch as it appears from the documents in the case that, in
taking the view that, because several years before the applicant had become a
candidate he had taken part in noisy but non-violent student demonstrations,
the applicant was not fit to carry out judicial functions with the necessary
reserve and seriousness expected of members of the judiciary, the ... Minister
of Justice based his decision on events which were not of a kind to justify
that decision". Cf. also Council of State, 10 June 1983, Raoult: in this case,
where the applicant had, one year before sitting for the competitive
examination, played a part in writing articles for and distributing, inside a
military base, a news sheet of a soldier's committee, the Minister of Justice
had taken the view, in the light of certain passages in that news sheet, that
this public expression of opinion was incompatible with the reserve and
seriousness expected of a candidate for appointment to judicial functions; the
Council of State held that "the decision challenged is based not on the
political sympathies (of the applicant) but on specific acts on his part; ...
the argument that other Ministers did not regard the acts in question as so
serious as to justify the applicant's exclusion from the examination is
irrelevant". This case law confirms the earlier case law (Council of State, 28
May 1954, Barel): in the case concerning a candidate who had been excluded
from the competitive examination for admission to the Ecole Nationale
d'administration because of his connection with the Communist party, the
Council of State ruled that the authority responsible for drawing up the list
of candidates "cannot, short of flouting the principle of the equality of all
French citizens with respect to access to public employment and the public
service, exclude from that list a candidate by reason solely of that
candidate's political opinions".
Endnote 130
France: The Council of State has pointed out that, in cases where the
candidate claims that he or she was excluded from a competitive examination on
account of his or her political opinions, it is the duty of the
administration, at the court's request, to produce the documentary evidence on
which the decision was taken. Failing the production of this evidence, or if
the evidence does not constitute a legitimate ground for excluding the
candidate, his or her claims should be deemed to be proved. (Council of State,
26 October 1960, Rioux and 21 December 1960, Vicat-Blanc); Italy, an adverse
decision by the administration on admissibility to an examination must be
supported by a statement of the reasons for the decision.
Endnote 131
Australia, Public Service Act; Canada, Employment in the Public Service Act;
United States, Public Service Reform Act 1978; Ghana, s. 37 of the PNDCL Act
No. 42 of 1982 (Public Service Commission); Japan; Kenya; Nigeria; New
Zealand; Pakistan; Philippines, s. 2 of Presidential Decree No. 807; United
Kingdom; Tanzania; Thailand.
Endnote 132
Australia, s. 33(3) of the Act cited above; Canada.
Endnote 133
Angola, s. 14 of the General Labour Act, Act No. 2/83 of 25 March 1983 to make
disciplinary regulations concerning appointees, and Decree No. 94/83 of 7 June
1983 specifying posts to be filled by appointment; the Government has
explained that the appointments procedure, for the purpose of which the views
of the trade union committee at the workplace and of the party cell and other
endorsements have to be obtained, is a precautionary measure; Colombia, s. 3
of Decree No. 2400 of 1968 and s. 18 of Decree No. 1950 of 1973 (offices of
"free appointment and dismissal"). On this point see RCE 1986, pp. 267-268.
Endnote 134
See, e.g., Poland, s. 76 of the Labour Code (nomination in the light of the
special nature of the work), LS 1974-Pol. 1A; Sao Tome and Principe, s. 28 of
Decree No. 36/80 to prescribe rules for the evaluation of workers for the
purpose of competitive examinations for recruitment and promotion
(appointments by service commissions are not covered by the Decree). A
provision to the same effect is contained in s. 6(1) of Decree No. 61/79
governing the National Employment Centre.
Endnote 135
See, e.g., France, s. 5 of Act No. 83-634 of 13 July 1983 to specify the
rights and obligations of officials; Italy, single section of Act No. 732 of
29 October 1984 to repeal subsection 3 of s. 2 of the Decree of 10 January
1957.
Endnote 136
Luxembourg, s. 2(c) of the public service regulations, as amended on 4 August
1987; Rwanda, s. 5 of Legislative Decree of 19 March 1974 to enact general
regulations governing state employees and s. 6 of the Presidential Order No.
227/01 of 20 December 1976 to enact regulations governing the personnel of
public establishments. Among the conditions to be fulfilled for the
recruitment of such personnel these regulations stipulate that candidates must
be of "good conduct, respectable and of good moral standing" and must be
"loyal to the national institutions and authorities". In Switzerland the Act
governing access to the federal public service formerly stipulated that
candidates must be of good repute. By s. 2, subsection 1, of the Federal Act
to make regulations governing officials, as amended on 19 December 1986, this
requirement was replaced by that of "good moral standing". The Office fédéral
du personnel has stated that, so far as political activities are concerned,
"in practice ... only a conviction on a criminal charge of extremist
activities may be held to impugn the person's reputation and constitute a
reason for non-selection"; Tunisia, s. 17, subsection 2, of Act No. 83-112 of
12 December 1983 to enact public service regulations; Zaire, s. 8(3) of the
Regulations of 1 August 1981 governing the public service of the State.
Endnote 137
See e.g. Nepal: Police reports are prepared on the activities of candidates
for recruitment to permanent posts in the public service to check, inter alia,
that the candidates have not engaged in political activities, the object being
to preserve the administration's neutrality. A candidate who is not recruited
on account of what is stated in the police report has no remedy and no right
of appeal; Sweden: the 1969 Regulations concerning personnel checks are the
legal basis for such inquiries; their object is to safeguard sensitive
information that has to be kept secret because of considerations of state
security. The Regulations specify the authorities empowered to carry out such
checks and the procedure to be observed, but they do not itemise the posts
deemed to be "sensitive", because in the Government's view a list of such
posts would in itself constitute "sensitive information". For many countries,
the provisions governing security checks are not available. See, for example,
by contrast, Algeria, where s. 38 of Decree No. 85-59 of 23 March 1985 to
issuing model regulations governing employees of public institutions and
administrations provides that the institution or administration in question is
under a duty to carry out an administrative inquiry before accepting a
candidate's application for employment in certain posts or services which are
itemised in special regulations.
Endnote 138
Australia: The 1979 Act to organise Australia's security services makes
provision for the establishment of a tribunal to hear appeals involving
security questions and to examine adverse evaluations or evaluations
containing reservations for security reasons; Canada: the Commission which
inquired into certain activities of the Royal Canadian Mounted Police
(McDonald Commission) made a number of recommendations: the security procedure
should be publicised; the procedure should be controlled and monitored;
adverse security reports should be subject to internal review; a security
appeals tribunal should be established. A Bill (C-157) for the establishment
of the Canadian Security and Intelligence Service was submitted to Parliament
in 1983. Canadian Human Rights Commission, Annual Report 1981, p. 16.
Endnote 139
See e.g. United States, s. 703(c) of the Civil Rights Act 1964; Ireland, s. 5
of the Employment Equality Act 1977; United Kingdom, s. 12 of the 1975 Act and
s. 12 of the 1976 Act.
Endnote 140
See ILO: General Survey of the Committee of Experts on the Application of
Conventions and Recommendations on the Freedom of Association and Collective
Bargaining Convention (No. 87), 1948, ILC, 69th Session, 1983, Report III
(4B), para. 76: "Convention No. 87 embodied a concept that had been
highlighted in the preparatory work on the instrument, namely that freedom of
association should be guaranteed without distinction or discrimination of any
kind as to occupation, sex, colour, race, creed, nationality or political
opinion. The only exception to this general principle is that stipulated in
Article 9, which permits States to determine the extent to which the
guarantees provided for in the Convention apply to the armed forces and the
police."
Endnote 141
op. cit., paras. 93-102.
Endnote 142
See e.g. Confederation of National Trade Unions (Canada), s. 5 of the
Regulations of 1984; Confédération générale du travail (France), s. 1 of the
Regulations of 1978; Canadian Labour Congress, s. 2 of the Regulations of
1984; Central Trade Union Council of Hungary, preamble to the Regulations;
Workers' Organisation of Mozambique, s. 1 of the Regulations of 1984; Workers'
Union of Burundi, s. 6 of the Regulations of 24 October 1986; General Union of
Algerian Workers, s. 2 of the Regulations; National Workers' Union of Mali,
preamble to the Regulations of 1982.
Endnote 143
See ILO: World Labour Report, Geneva, 1985, Vol. 2, p. 14. The percentage of
female workers in total trade union membership in selected OECD countries
varies greatly: 27 per cent (Canada, United States), 29 per cent (Japan), 34
per cent (United Kingdom), 43 per cent (Denmark), 47 per cent (Australia). The
percentage accounted for by female workers in total trade union membership is
generally lower in the Third World, though it has been rising in recent years.
See also below, Chapter IV, Section 2, Subsection 2.
Endnote 144
See e.g. Denmark, s. 4 of Act No. 161 of 12 April 1978 (conditions of
employment, including dismissal); France, ss. L.122-45 (dismissal and
penalties on grounds of race, origin, ethnic group, national origin, sex,
family status, political opinions, trade union or like activities, religious
belief), L.123-1(c) (any action concerning remuneration, assignment to
particular jobs, qualifications, classification, advancement or reassignment
on the ground of sex), L.140-2 (remuneration according to sex) of the Labour
Code; Ireland, s. 3(4) of the 1977 Act (conditions of employment, including
employment-related benefits, working conditions, treatment in relation to
overtime, shift work, short time, transfers, lay-offs, redundancies and
disciplinary measures); Italy, Act No. 903 of 9 December 1977; United Kingdom,
s. 4(2) of the 1976 Act (conditions of employment, including promotion,
transfer, dismissal or any other benefit, facility or service granted or
withheld on grounds of race).
Endnote 145
See e.g. Canada, United States.
Endnote 146
This individual right is recognised in Article 7(c) of the International
Covenant on Economic, Social and Cultural Rights, which states that everyone
has the right to the enjoyment of just and favourable conditions of work which
ensure, in particular, "equal opportunity for everyone to be promoted in his
employment to an appropriate higher level, subject to no considerations other
than those of seniority and competence". This right is recognised in the
labour legislation of a number of countries, e.g. Spain, Portugal.
Endnote 147
See e.g. Spain, s. 8(2) of Act No. 8 of 10 March 1980 to promulgate the
Workers' Charter: "Occupational categories and the criteria for promotion
within the undertaking shall be governed by rules common to workers of both
sexes", LS 1980-Sp. 1; Portugal, s. 10 of Legislative Decree No. 392/79 of 20
September 1979: "Women workers shall be guaranteed the same opportunities as
men for following a career enabling them to reach the highest level in the
occupation concerned (including) the right to hold managerial posts and to
change from one occupation to another", LS 1979-Por. 3.
Endnote 148
Angola, s. 88 of the General Labour Act: "The expression "promotion" means the
placement of a worker in a job in a higher grade carrying a higher rate of
wages", LS 1981-Ang. 1.
Endnote 149
Spain, s. 22 ("Advancement and vocational training") of the Workers' Charter;
France, s. L.931 of the Labour Code, as amended by Act No. 85-772 of 25 July
1985; the provision appears in the chapter dealing with individual promotion
and leave for vocational training.
Endnote 150
See, however, Angola, ss. 88(2) et seq. of the General Labour Act; Brazil, s.
461(2) and (3) of the consolidated labour laws of 1985, LS 1985-Bra. 1. Where
the staff is organised on the basis of regular promotion by seniority,
promotions must be in accordance alternatively with merit and seniority;
Ecuador, s. 325 of the Labour Code, LS 1978-Ec. 1 (applies to transport
undertakings only); Mexico, ss. 154 et seq. of the Federal Labour Act.
Pursuant to s. 157 of that Act the conciliation and arbitration board has
authority to deal with disputes arising between an employer and a worker
concerning the application of the provisions relating to promotion, the main
criteria for it being seniority and merit; Romania, s. 75(1) of the Labour
Code, LS 1972-Rom. 1.
Endnote 151
See, e.g., Honduras, clause 20 of the collective agreement between the Tela
Railroad Company and its trade union, La Lima, 16 April 1980; clause 29 of the
collective agreement between the National Electric Energy Corp. and its trade
union, Tegucigalpa, 1981.
Endnote 152
e.g. Italy: The Court of Cassation considered that, while the provisions of
the collective agreement or the staff regulations of the enterprise required
certain objective criteria to be respected, the evaluation of these criteria
in each particular case and their application in respect of promotion were
left to the discretion of the employer. Nevertheless, in accordance with ss.
1175 and 1375 of the Civil Code, the exercise of that discretion was subject
to observance of the principles of good faith and the correct execution of
obligations laid down in collective agreements. The employer had the duty to
state the reasons for his or her decisions in such matters in order both to
enable the workers to assert their rights and to satisfy the requirements of
judicial review. Court of Cassation (Labour Chamber), 22 February 1985, No.
1603.
Endnote 153
See ILO: Recruitment, training and career development in the public service,
Report II, Joint Committee on the Public Service, Third Session, Geneva, 1983,
pp. 63 et seq.; see, however, Greece, ss. 159-182 of the Public Service Code
(promotion by selection or according to seniority).
Endnote 154
Norway: In the report for 1984 the Ombud stated that in very many cases the
opportunities open to men and women are not equivalent where the employer is
guided by traditional considerations in choosing persons for promotion.
Already in the 1981 report the Ombud had referred to a general tendency to
underrate the qualifications of women.
Endnote 155
ILO: Social and Labour Bulletin, 3/81, pp. 352 and 353. The report on the
survey offers an explanation for the differences in career between the sexes:
women tend to be overlooked for promotion, lose interest in advancement and
are subsequently criticised for lack of ambition -- with the result that
management is even more reluctant to promote women's career development.
Endnote 156
N.M. Shiskan: "Trud zhenschin v usloviiakh razvitogo sotsialisma", Shtiintsa
publications, Kishinev, 1976, pp. 137-145.
Endnote 157
General Survey of 1986 on equal remuneration, paras. 199-201; see also Report
II of the Joint Committee on the Public Service, op. cit., pp. 72-74: "While a
steady increase in the number of female employees in the public service is to
be found in most countries, this trend has not been accompanied by
satisfactory progress in their representation at the middle and higher levels
or a more equitable distribution of women among the various statutory
categories. The disadvantageous status of women results in a lack of
representation in senior posts, whereas they account for the large majority in
lower-grade jobs ...".
Endnote 158
See e.g. Ireland, para. 6(2) of the Employment Equality Agency's Code of
Practice: requirements such as age limits or uninterrupted service may in
practice give rise to indirect discrimination. See also Labour Court,
Department of Posts and Telegraphs v. 35 Women Telephonists (1982), DEE 3/82.
The female complainants had been obliged to resign from their jobs because
they had married before 1973, at a time when a woman who entered into marriage
was debarred from employment in the public service. The relevant provision was
repealed in 1973 and the complainants were reinstated. However, their pre-1973
service was disregarded in the calculation of seniority. The Labour Court held
that this had been a case of indirect discrimination, that the consequences
remaining from earlier discrimination ought to be rectified and that
consequently the women telephonists concerned ought to be deemed never to have
suffered an interruption of their employment relationships.
Endnote 159
See e.g. Italy, s. 3 of Act No. 903 of 9 December 1977. The section in
question contains the proviso "unless special requirements are laid down for
the purpose by collective agreement".
Endnote 160
By 23 March 1988 the Convention had been ratified by eight member States:
Cyprus, Malawi, Niger, Spain, Sweden, Venezuela, Yugoslavia, Zaire.
Endnote 161
It should be noted that, owing to the structure of the labour market in many
countries, a large share of the workforce recruited on a casual basis is
accounted for by women and young persons.
Endnote 162
See Court of Justice of the European Communities, Judgement of 16 February
1982, Burton v. British Railways Board, 19/81 EEC: in the context of Directive
76/207 the word "dismissal" must be widely construed so as to include
termination of the employment relationship between a worker and his or her
employer, even as part of a voluntary redundancy scheme. It follows that the
principle of equality of treatment applies to eligibility for a voluntary
redundancy benefit payable by an employer to a worker who wishes to leave his
or her employment.
Endnote 163
See e.g. Italy, s. 15 of Act No. 300 of 20 May 1970. The court must order the
reinstatement of the worker (s. 18).
Endnote 164
Mauritania, s. 20 of Act No. 63-023 of 23 January 1963; Senegal, s. 47 of the
Labour Code, LS 1987-Sen. 1.
Endnote 165
Ireland, s. 9.5 of the Code of Practice cited earlier: under "last in, first
out" agreements, in case of staff reductions discrimination may occur if the
members of one sex tend to have less seniority owing to earlier discrimination
in the matter of access to employment and promotion. See footnote 155 above.
Endnote 166
Equal Opportunity Tribunal of New South Wales, 20 October 1986, Donka
Najdovska and others v. Australian Iron and Steel Pty Ltd.; see also Social
and Labour Bulletin, 2/87, p. 349. The company, it was claimed, had left women
on job waiting lists for years at a time, while continuing to recruit men.
This meant that the women as a whole had less seniority than the men and were
obviously directly in the firing line under a retrenchment policy of "last in,
first out".
Endnote 167
Belgium, Labour Tribunal of Charleroi, 12 November 1984, Bekaert Cockerill:
"by providing for the establishment of a system of part-time employment for
"all women who are not heads of household" the parties to the agreement ...
did in fact intend to apply a discriminatory measure based on membership of a
particular sex ...; the dismissal of thirteen female complainants is open to
the same objection". The works agreement which had led to the dismissal had
not been registered and hence could not be declared void. The Tribunal ordered
the payment of damages in lieu of reinstatement.
Endnote 168
Act No. 863 to transform into an Act, with amendments, Legislative Decree No.
726 of 30 October 1984 concerning urgent measures for maintaining and
increasing employment.
Endnote 169
The argument most commonly advanced is based on the idea that women are doing
two jobs: the paid job in employment and the work at home and in the family,
which is recognised as such by society.
Endnote 170
Supreme Court of Japan, Judgement of 29 August 1975, cited in International
Labour Review, 1978, Vol. 117, No. 1, p. 59.
Endnote 171
Judgements of the Court of Justice of the European Communities dated 26
February 1986, Marshall, 152/84, Beets-Proper, 262/84. As regards the
consequences of a differentiation in age limit in the matter of social
security see the Judgement (cited earlier) dated 16 February 1982 in the case
Burton v. British Railways Board: The determination of a minimum pensionable
age for social security purposes which is not the same for men as for women
does not amount to discrimination prohibited by Community law. A draft
Directive had been prepared, dated 5 May 1982, which would have left open the
option under article 7 of Directive 79/7/EEC of 19 December 1978 for a State
to exclude from the scope of the Directive the fixing of an age limit for the
purpose of eligibility to a retirement pension, and which would have provided
that the class of provisions conflicting with the principle of equality of
treatment should include those discriminating between the sexes for the
purpose (among others) of retirement age. On 10 December 1982 the Council of
the European Communities issued a recommendation (Official Journal No.
L.357/27 of 18 December 1982) which was summarised by the Commission in the
following terms: the Member States are recommended to acknowledge flexible
retirement, i.e. freedom for employed persons to choose their age of
retirement themselves. The Commission's proposal that the choice should be
exercisable as from the same age by men and by women was not, however, adopted
by the Council.
Endnote 172
Article 5(c) of the Termination of Employment Convention, 1982 (No. 158)
provides that "the filing of a complaint or the participation in proceedings
against an employer involving alleged violation of laws or regulations or
recourse to competent authorities" does not constitute a valid reason for
termination. The protection against reprisals provided for in the legislation
in force in various countries covers not merely termination but also promotion
and other conditions of employment. See also Chapter V, Section 2.
Endnote 173
Guatemala, s. 10 of the Labour Code, LS 1961-Gua. 1; Honduras, s. 10 of the
Labour Code, LS 1959-Hond. 1; Japan, s. 104 of the Labour Standard Law, LS
1947-Jap. 3.
Endnote 174
Canada, Quebec, s. 83(1) of the Charter of Human Rights and Freedoms: "It is
unlawful to attempt to apply or to apply reprisals against a person, a group
of persons or a body that has in good faith applied for an inquiry, given
evidence or otherwise participated in an inquiry carried out by or on behalf
of the Commission"; United States, s. 704(a) of the Civil Rights Act, 1964
(does not, however, refer to social origin or to political opinion).
Endnote 175
See e.g. Australia, s. 94 of the Sex Discrimination Act 1984; New Zealand, s.
15 of the Equal Pay Act 1972, LS 1972-NZ 1; United Kingdom, s. 4 of the 1975
Act; Sweden, s. 4(3) of the Act of 17 December 1979.
Endnote 176
United Kingdom, s. 2 of the 1976 Act which (like the 1975 Act) defines as
"discrimination by reprisal" the fact of treating the victimised person less
favourably than would be treated any other person in like circumstances, on
the ground that the person victimised is suspected of having brought or has
brought proceedings under the Act, or has given evidence or information in
connection with such proceedings, or has alleged that an act has been
committed which would amount to a contravention of the Act. Reprisals adopted
against a worker in cases covered by the Act are themselves deemed to be
discriminatory within the meaning of the Act.
Endnote 177
Ghana, s. 70 of the Legislative Instrument to make Labour Regulations, LS
1979-Gha. 1C; Jamaica, s. 6(3) of the Equal Pay Act 1975, LS 1975-Jam. 2. See
also General Survey of 1986 on equal remuneration, para. 169.
Endnote 178
Council Directive 76/207 of 9 February 1976.
Endnote 179
Federal Republic of Germany, s. 612(a) of the Civil Code, as amended by the
Act of 13 August 1980; Belgium, s. 136 of the Act of 4 August 1978; Denmark,
s. 9 of Act No. 161 of 12 April 1978; France, s. 123-5 of the Labour Code;
Greece, s. 6(1) of Act No. 1414; Ireland, ss. 25 and 26 of the 1977 Act;
Luxembourg, s. 8 of the Act of 8 December 1981; Netherlands, s. 1637(i)(j) of
the Civil Code, as amended by the Act of 1 March 1980; Portugal, s. 11 of
Legislative Decree No. 392/79 of 20 September 1979.
Endnote 180
Belgium, France, Ireland, Netherlands.
Endnote 181
S. 25(1) of the 1977 Act.
Endnote 182
ibid., s. 26(1)(d).
Endnote 183
See Chapter I, Section 3 above, paras. 57 et seq.
Endnote 184
See e.g. Chile, Report of the Commission appointed under article 26 of the
Constitution of the ILO to examine the observance by Chile of the Hours of
Work (Industry) Convention, 1919 (No. 1) and the Discrimination (Employment
and Occupation) Convention, 1958 (No. 111) (GB.196/4/10), paras. 38, 116,
157-181. "The Commission has reached the conclusion that the measures taken by
the new Government, after the change of regime on 11 September 1973, to
facilitate the dismissal from their employment of those persons who, in the
new situation created in the country, were considered by the Government to
have a disruptive effect on production in the private sector, or to be a
danger to the security of the State, were not accompanied by the necessary
guarantees to prevent these measures being used to dismiss workers on the
basis of their political opinion." (para. 174). "Having completed its
investigation of the facts and its examination of the question submitted to it
by the Governing Body, and on the basis of the foregoing, the Commission has
reached the conclusion that these special measures taken by the Government had
results which were inconsistent with Article 2 of the above-mentioned
Convention, according to which each Member for which this Convention is in
force undertakes to declare and pursue a national policy designed to promote,
by methods appropriate to national conditions and practice, equality of
opportunity and treatment in respect of employment and occupation, with a view
to eliminating any discrimination in respect thereof." (para. 175).
Endnote 185
Turkey, RCE 1983, pp. 224 and 225; RCE 1984, pp. 268-270; RCE 1985, pp.
294-296; RCE 1987, pp. 376-378. S. 2 of Martial Law No. 1402, as amended by
Act No. 2301 of 19 September 1980, makes it mandatory for the competent
authorities to execute immediately every request of the Martial Law Commanders
to transfer or dismiss employees of the central Government and to suspend or
dismiss officials in local administrations whose services are considered
harmful from the point of view of general security, law and order or public
safety, or whose work is not considered necessary. A large number of workers
in state enterprises and of teachers have been dismissed by virtue of that
provision on "ideological" grounds. Action has since been taken to review the
case of the dismissed teachers and, possibly, to reinstate them: this process
is still unfinished.
Endnote 186
Report of the Committee set up to consider the representation presented by the
International Confederation of Free Trade Unions under article 24 of the
Constitution alleging non-observance of the Discrimination (Employment and
Occupation) Convention, 1958 (No. 111), by Czechoslovakia, ILO, Official
Bulletin, Vol. LXI, 1978, Series A, No. 3, Supplement. See also RCE 1979, pp.
182 and 183; RCE 1980, pp. 169-171; RCE 1981, pp. 172-174; RCE 1982, pp.
195-199; RCE 1983, pp. 211-213; RCE 1984, pp. 260-262; RCE 1985, pp. 284-287.
The Committee has noted that the dismissals in question and relevant judicial
decisions were based on the fact that the workers concerned had signed or
supported the manifesto known as "Charter 77".
Endnote 187
Report of the Commission of Inquiry appointed under article 26 of the
Constitution of the ILO to examine the observance of the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111), by the Federal
Republic of Germany, ILO, Official Bulletin, Vol. LXX, 1987, Series B,
Supplement 1, paras. 582-594.
Endnote 188
General Survey of 1986 on equal remuneration, para. 100; as regards the need
for a comprehensive approach to problems in this field, see also ibid., paras.
250 to 254.
Endnote 189
See France, Labour Code, ss. L.124-4-2 and L.140-2(2); see also Court of
Cassation (Social Affairs Chamber), 16 July 1987, Dame Gomichon v. Société des
établissements Delmazure.
Endnote 190
Paragraph 2(b)(vi) of the Recommendation mentions, among the conditions of
employment, social security measures and welfare facilities and benefits
provided in connection with employment. The Convention refers to the concept
of "terms and conditions of employment", which covers all matters connected
with employment (ILC, 40th Session, 1957, Report VII(1)), Seventh item on the
agenda, Discrimination in the field of employment and occupation, pp. 3, 30
and 35 (item 5(g) of the questionnaire) which are specified in the detailed
enumeration given in the Recommendation. During the first discussion at the
40th Session of the Conference, 1957, the reference to social security was
introduced into the detailed enumeration given in the draft Recommendation on
the basis of an amendment proposed by the Worker members. (Committee on
Discrimination, 1957, PV.12, p. XIII/3; ILO, Discrimination in the field of
employment and occupation, ILC, 42nd Session, 1958, Report IV(1), Fourth item
on the agenda.) See also General Survey, 1963, para. 91 and General Survey,
1971, para. 37.
Endnote 191
A study of specific international standards on this subject might be
undertaken following its classification among possible subjects for new
instruments, see Report of the Working Party on International Labour
Standards, ILO, Official Bulletin, Vol. LXX, 1987, Series A, Appendix III,
para. 11.
Endnote 192
See General Survey, 1963, para. 91 and General Survey, 1971, para. 37.
Endnote 193
Belgium, RCE 1983, pp. 205 and 206, RCE 1985, pp. 280 and 281; Netherlands,
RCE 1983, pp. 221 and 222, RCE 1986, pp. 273 and 274.
Endnote 194
Council Directive No. 79/7/EEC of 19 December 1978 on the progressive
implementation of the principle of equal treatment for men and women in
matters of social security. The adoption of specific measures concerning equal
treatment for men and women in social security matters had been expressly
envisaged in article 1, para. 2 of Directive No. 76/207/EEC on the
implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and working conditions;
Council Directive No. 86/378/EEC of 24 July 1986 on the implementation of the
principle of equal treatment for men and women in occupational social security
schemes; Council Directive No. 86/613/EEC of 11 December 1986 on the
application of the principle of equal treatment between men and women engaged
in an activity, including agriculture, in a self-employed capacity, and on the
protection of self-employed women during pregnancy and motherhood (in
particular art. 5).
Endnote 195
Italy, ss. 5 and 8 of Act No. 300 of 1970.
Endnote 196
See e.g. Alaska, California, Delaware, Illinois, Massachusetts, Nevada, New
Hampshire, Rhode Island.
Endnote 197
Delaware, Illinois, Massachusetts, New Hampshire.
Endnote 198
See e.g. Canada, New Brunswick, s. 44.1 of the Employment Regulations Act. The
Act defines the lie detection test as an analysis, examination, interrogation
or test carried out by means of one or more mechanical, electrical,
electro-magnetic, electronic or other apparatus, instrument or device for the
purpose or ostensible purpose of evaluating a person's credibility. See also
United States: in the years 1980-86 a large number of states adopted
legislation strengthening the ban on the use of lie detection tests for
workers, or candidates for employment, as a condition of employment
(California, Georgia, Hawaii, Iowa, Maryland, Massachusetts, Michigan, New
Jersey, Oregon, Rhode Island, Tennessee, Washington, West Virginia, and
others).
Endnote 199
In 1985 the share of part-time workers in the total working population was
28.6 per cent in Norway, 24.6 per cent in Sweden, 23.7 per cent in the
Netherlands, 21.2 per cent in the United Kingdom, between 15 and 19 per cent
in Australia, Canada and the United States, and about 10 per cent in the
Federal Republic of Germany, France and Japan. Part-time employment exists
also (though on a lesser scale) in developing countries; in Tunisia, for
example, s. 25 of the Act of 12 December 1983 issuing public service
regulations repealed provisions that had authorised half-time work for women
only.
Endnote 200
The share accounted for by women in total part-time employment is 92 per cent
in the Federal Republic of Germany, 90 per cent in the United Kingdom, 85 per
cent in France, and 84 per cent in Sweden. In Australia, Canada and the United
States part-time employees include more young persons, many of whom work while
carrying on their studies.
Endnote 201
According to the OECD, from a statistical point of view, involuntary part-time
working occurs when a worker is forced to take a part-time job instead of a
full-time job because of the difficulty of finding the latter, OECD,
Employment Outlook, Paris, 1983, p. 45. In the United States it is estimated
that 536,000 women do part-time work because they have not found full-time
jobs. In Australia the Office of the Status of Women has reported that,
according to a survey carried out in 1982, 21 per cent of the women working
between 10 and 30 hours a week would have preferred to work more hours.
Endnote 202
See e.g. Sweden: A person who works less than 17 hours a week is not entitled
to unemployment insurance. ILO, General Report of the Advisory Committee on
Salaried Employees and Professional Workers, Geneva, 1985, p. 26.
Endnote 203
See e.g. Federal Republic of Germany: In general the right to a pension
accrues only to persons who work more than 20 hours a week; Denmark: a person
working less than 15 hours a week is not entitled to a pension; United States:
part-time workers do not qualify for the benefits available to full-time
workers: health insurance, pension schemes and paid leave. Report of the
Advisory Committee, 1985, cited above.
Endnote 204
See e.g. Australia, South Australia and Tasmania: According to the legislative
provisions and arbitral awards, rights arising out of a relationship of
part-time employment are to be determined pro rata; Colombia: under the Labour
Code workers are entitled to the appropriate emoluments and guarantees
irrespective of the length of the working day; Spain: remuneration and
allowances payable to part-time workers are calculated on the same basis as
for full-time workers, adjusted according to the hours worked; Norway: there
is no distinction between full-time and part-time employees in agreements to
which the Association of Employers in Commerce is a party; there are certain
provisions aimed at preventing differential treatment of the two categories;
Philippines: entitlements for part-time workers, including those relating to
wages, social security benefits, medical care, workmen's compensation, paid
leave and living allowances, are prorated to those of full-time workers.
(Source: Advisory Committee's report, op. cit.)
Endnote 205
See however the following provisions adopted in the USSR: The Fundamental
Principles governing the labour legislation of the USSR and the Union
Republics (LS 1970-USSR 1), ss. 26 and 69 to 73, as amended and supplemented
by the Decree of the Presidium of the Supreme Soviet of the USSR of 2
September 1987 granting additional benefits to pregnant workers and to women
workers with young children; under s. 26, as amended, the administration is
required to grant part-time work (either on a daily or a weekly basis) to such
women as well as to women caring for a family member who is ill; the women
receive proportionate wages. For other workers, the same conditions may be
fixed by means of an agreement between the person concerned and the
administration. Order No. 111/8-51 of 29 April 1980 by the State Labour and
Social Affairs Committee of the All-Union Central Council of Trade Unions, to
approve regulations respecting the procedure and conditions for employing
women having children and working part time, LS 1980-USSR 2: "... The
regulations lay down general and special provisions guaranteeing women more
favourable conditions for combining their duties as mothers with occupational
activity and their participation in social life." According to the Labour Code
of the RSFSR (LS 1971-USSR 1), the fact that part-time work is involved shall
not affect in any way (a worker's) annual leave entitlement, the calculation
of his or her probationary period or any other rights connected with his or
her employment (s. 49).
Endnote 206
Canada, Human Rights Tribunal, 22 September 1981, Bhinder v. Canadian National
Railways (CNR). On appeal, the Federal Court of Appeal quashed the tribunal's
decision, Canadian National Railways v. Bhinder and the Canadian Human Rights
Commission. On further appeal to the Supreme Court, the Supreme Court, by a
judgement dated 17 December 1985, dismissed the appeal of the appellants
(Bhinder and Canadian Human Rights Commission v. CNR) and ruled that employers
are not under an obligation to make reasonable adjustments to conform to the
needs of workers or future workers. The Canadian Human Rights Commission is to
prepare a report to Parliament on the implications of the Supreme Court's
decision.
Endnote 207
Canadian Human Rights Commission, Annual Report 1981, p. 19.
Legislation
See related national legislation from Natlex
Rwanda: Labour Code
Honduras: Agrarian Reform Act
France: Penal Code
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: C100 Equal Remuneration Convention, 1951
Conventions: C122 Employment Policy Convention, 1964
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C158 Termination of Employment Convention, 1982
Recommendations:R090 Equal Remuneration Recommendation, 1951
Recommendations:R150 Human Resources Development Recommendation, 1975
Recommendations:R166 Termination of Employment Recommendation, 1982
