Chapter IV. Implementation of principles

General

157. Provision is made for the application of the principles contained in the instruments of 1958 in Articles 2 and 3 of the Convention and in Paragraphs 2 to 10 of the Recommendation. Application consists primarily of declaring a national policy aimed at equality of opportunity and treatment in employment and occupation and pursuing this policy, both directly, in ensuring its observance in services and employment under the control of a national authority and, indirectly, by taking measures to secure its acceptance in other sectors. During the drafting of the instruments, the words "public policy" were replaced by "national policy" to avoid any implication that responsibility for promoting equality of opportunity and treatment in all fields of training and employment falls only on the public authorities. (Endnote 1) The fact that the State bears the chief responsibility of declaring and pursuing a national policy should not cause one to overlook the essential role of employers' and workers' organisations in promoting the principle of equality at the workplace itself, and the corresponding responsibilities. Lastly, the provisions relating to the application of the principle of the Convention allow considerable flexibility and a wide margin for adaptation to national conditions and practice. The form taken by implementing measures is an important element, but the criterion for application of the Convention should be whether unequivocal results are achieved in pursuing equality of opportunity and treatment in employment and occupation without unlawful discrimination. The first Section of this Chapter will examine the formulation and content of a policy designed to promote equality of opportunity and treatment, while the second Section will outline ways in which such a policy can be implemented.

Section 1: Formulation and content of a national policy designed to promote equality of opportunity and treatment

158. Under Article 2 of the Convention, "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". The national policy of equality of opportunity and treatment should, firstly, be clearly stated, which implies that programmes for this purpose should be or should have been set up and, secondly, should be applied, presupposing state implementation of appropriate measures according to the principles outlined in Article 3 of the Convention and Paragraph 2 of the Recommendation. The national policy should, in particular, take into account the fact that measures designed to promote equality of opportunity and treatment in respect of employment and occupation are a matter of public interest and constitute a right of the individual; to this end, "government agencies should apply non-discriminatory employment policies in all their activities; employers should not practice or countenance discrimination in engaging or training any person for employment, advancing or retaining such person in employment, or in fixing terms and conditions of employment; nor should any person or organisation obstruct or interfere, either directly or indirectly, with employers in pursuing this principle; in collective negotiations and industrial relations the parties should respect the principle of equality of opportunity and treatment in employment and occupation, and should ensure that collective agreements contain no provisions of a discriminatory character in respect of access to, training for, advancement in or retention of employment, or in respect of the terms and conditions of employment".

159. While affirmation of the principle of equality before the law may be an element of such a policy, it cannot in itself constitute a policy within the meaning of Article 2 of the Convention. (Endnote 2) The incorporation of a Convention in internal law by virtue of ratification is not sufficient to ensure its application in law and in practice. (Endnote 3) Similarly, the absence of laws and administrative measures expressly introducing inequalities is not sufficient to meet the requirements of the Convention for the elimination of all forms of discrimination. (Endnote 4) Certain forms of discrimination based on race, national or social origin, sex-based occupational segregation and sexual harassment are not, on the whole, caused by an intention to discriminate or by provisions of legislation or regulations, but are rather the result of behaviour, attitudes or an expression of prejudice, in respect of which measures should be adopted for the implementation of the national policy. (Endnote 5)

Methods appropriate to national conditions and practice

160. The Committee has already noted earlier that "although the formulation of the national policy in question must comply, in substance, with conditions laid down in the Convention or the Recommendation, it must be underlined that its form is not subject, under these instruments, to any particular conditions". (Endnote 6) Article 2 of the Convention provides that national policy is to promote equality "by methods appropriate to national conditions and practice". Adjustment to national conditions and practice concerns the methods by which the principles of the Convention are to be implemented within the framework of the national policy of equality which the Government is to declare and pursue; it is not to affect the principles to be applied. The Convention leaves it to each country to use methods which, taking into account national conditions and practice, appear to be the most appropriate in view of their nature, time scale (Endnote 7) and their timeliness, in order to promote equality of opportunity and treatment in employment and occupation. By describing national policy as one designed to promote equality of opportunity and treatment, (Endnote 8) the Convention indicates that implementation of the national policy may be gradual, although some obligations have immediate effect, such as those of declaring a policy, repealing statutory provisions and eliminating administrative practices which are discriminatory, and the duty to report on results obtained. The Convention thus allows considerable flexibility as regards the manner of declaring the policy of equality and of pursuing action designed to implement the principle of equality. A declaration of policy may result from constitutional norms (Endnote 9) or from legal provisions, (Endnote 10) or be expressed in a declaration of government policy submitted to Parliament or another appropriate body or in any other manner consistent with national practice. It may also result from a combination of such methods. (Endnote 11) Some countries have stated in their reports that national policy aimed at promotin equality is based on religious principles advocating equality of treatment. (Endnote 12) The Committee observed on a previous occasion that what matters from the point of view of the Convention is that "this formulation should be such as to define a real "national policy" and that it should cover all the objectives of this instrument". (Endnote 13)

Repeal of provisions inconsistent with a national policy of equality

161. The obligation to declare a national policy designed to promote equality of opportunity and treatment in employment and occupation in accordance with the objectives of the Convention has as its corollary the duty to repeal statutory provisions and modify administrative practices which are inconsistent with this policy. Article 3(c) of the Convention provides that each Member for which the Convention is in force must "repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy" designed to secure equality of opportunity and treatment without discrimination on the grounds indicated in Article 1 of the Convention. While this absolute and universal obligation is a necessary condition for the application of the 1958 instruments, it should be borne in mind that it is only one aspect of their implementation, which also implies the adoption of affirmative action measures to correct de facto inequalities in all fields concerning employment and occupation, whether or not governed by law or by administrative action. Some governments have stated that legislation has been reviewed in order to delete provisions involving discriminatory measures restricting the employment of women (Endnote 14) or of members of other visible minorities. In some countries, bodies set up to implement the national policy of equality play an important part in the amendment of legislation and administrative practices which are inconsistent with the principle of equality. (Endnote 15) In examining the application of the Convention, the Committee has often noted with satisfaction the express repeal or amendment of provisions of legislation or regulations which were discriminatory on the grounds referred to by the Convention, so as to remove any doubt or uncertainty as to the situation in positive law in this respect. (Endnote 16)

Contents of national policies

162. In order to preserve the flexibility which is essential for its application, the Convention does not specify the content of measures which may be adopted for the promotion of effective equality of opportunity and treatment in employment and occupation, and leaves it to States to determine the content of such measures in accordance with the objective of the Convention. (Endnote 17) The content of the national policy should, however, draw its inspiration from the principles of the Convention: it is essential that it should be designed to promote equality of opportunity and treatment by eliminating all distinctions, exclusions or preferences in law and in practice; that it should cover the different grounds of discrimination expressly referred to (race, colour, sex, national origin, religion, political opinion and social origin); (Endnote 18) and lastly, that it should provide for the implementation of the principle of equality of opportunity and treatment in all fields of employment and occupation. (Endnote 19) The Committee has noted, on a previous occasion, the importance of taking "supplementary action ... to ensure that national policy clearly states that its purpose is to promote equality of opportunity and treatment for all the categories of persons covered by the Convention, in all forms of employment and occupation, whether public or private (having regard -- as provided by the 1958 instruments -- to the methods appropriate to national conditions and practice)". (Endnote 20) The variety of ways in which discrimination on the grounds referred to in Article 1 of the Convention is manifested makes it necessary to adopt differentiated measures. The elimination of certain forms of discrimination based on sex, race, national or social origin lends itself more easily to the adoption of affirmative action while for other forms of discrimination, such as that on account of political opinion or religion, the objectives of the Convention might generally be adequately served by an attitude of abstention, within an appropriate legal framework. (Endnote 21) Lastly, supplementary measures correspond to the scope of the national policy: identification of forms of discrimination based, for example, on social origin will lead to the adoption of measures which, within the area covered by the Convention, will affect the entire educational system and employment policy. (Endnote 22)

163. In the light of the information sent by a number of countries, the Committee has noted substantial change in the approach of the national policy of equality of opportunity and treatment, which has broadened from an essentially standard-setting approach to embrace economic and social measures. At first, standard-setting mechanisms to eliminate discrimination were guided by the general principle of equality, which subsequently became more specific and incorporated equality in employment and occupation. (Endnote 23) The great number of constitutions dealing with the principle of equality bear witness to the fact that this approach is widespread, even though some aspects of discrimination are not covered and the practical application of these provisions in the legal system varies considerably according to the country concerned. These general principles, which had often long existed in legal texts, have been supplemented and made more specific by legislation banning discrimination in employment and occupation, or new provisions concerning equality in acts specific to various branches of activity (for example the civil service) or certain aspects of employment. In several countries, this legislation has been adopted in application of regional treaties, (Endnote 24) of specific agreements on these matters concluded between countries within a same region (Endnote 25) or of regional programmes. (Endnote 26) Under law, the ban on unwarranted discrimination has taken the form of increased legal protection for individuals and the definition of a range of penalties. Courts and case law have often played a vital role in establishing individual rights. Penalties have taken various forms: civil action to redress wrongs incurred and damages, financial compensation, payment of back wages, reinstatement in the enterprise; penal sanctions; administrative penalties; loss of registration as a contractor with the public authorities, etc. Finally, institutional machinery has been set up to supervise the effectiveness of the legislation on equality and to promote this legislation. This has enabled employers' and workers' organisations, alongside other bodies concerned, to take part in drafting and applying national policy. In many cases, this legislation and regulations have not reflected a general will but have preceded the changes they have contributed to bringing about Furthermore, the perception of discrimination has been strictly confined within and limited by legislation on equality. For instance, the recognition of the principle "equal pay for equal work" implies that discrimination only exists in the case of the same work, whereas the introduction of the concept of equal pay for work of equal value, i.e. of comparable worth, reveals new aspects of discrimination. (Endnote 27)

164. At a further stage, this movement for equality of opportunity began to turn upon actual practice, giving rise to the definition and implementation of affirmative action programmes. Once it had been generally acknowledged that an individual was entitled to equality of treatment irrespective of his or her race, sex or national extraction, efforts focused on changing practices throughout society and especially within the enterprise. In most cases, inequality in employment results from the fact that several categories of the population remain unaffected by improvements in job prospects or training, from which other categories have benefited. The policy of equality of opportunity involves making available to each and every one, without discrimination on the basis of race, colour, sex, national extraction, political opinion, religion and social origin, comparable means and prospects in training and activities. Affirmative action programmes call upon economic and social policy as a whole (Endnote 28) and extend far beyond the legal framework and regulations establishing them and enabling them to be carried out on the required scale. (Endnote 29) In some cases, social experiments are now being carried out to eliminate discrimination based on sex or national extraction; these take the form of pilot projects, (Endnote 30) the findings of which are studied in great detail before any decision to extend them and make these measures widespread is taken. In order to avoid a situation whereby prospects for equality of opportunity lose their edge or fade, it is even more vital that there should be a national policy to promote equality of opportunity and treatment in employment and occupation to eliminate all discrimination in this field.

165. Upon reading the available information, it would seem that many countries have adopted and applied measures aimed at certain groups of the population, such as women and ethnic minorities. Although these measures are indeed action to be considered within the scope of the Convention, they appear far too often to be set apart, limited and unrelated to a national policy of equality of opportunity and treatment. In their reports, governments mention the existence of general texts laying down basic guide-lines for social and economic development; however, these texts rarely attempt to integrate the role of the principle of equality without discrimination based on the grounds set forth in the Convention. (Endnote 31) Measures to promote the participation of certain groups or of women in development sometimes lack this orientation towards equality, thus undermining achievement of the very economic and social objectives upon which they appear over-concentrated.

Affirmative action to correct de facto inequalities in training and employment

166. The adoption of an affirmative action programme stems from the observation that the banning of discrimination is not enough to eliminate it in actual practice. In Canada, the purpose of the Act respecting employment equity is "to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and persons who are, because of their race or colour, in a visible minority in Canada by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences". (Endnote 32) The concept of "positive action programme" encompasses measures which set out to eliminate and make good any de facto inequalities, thereby enabling members of groups suffering from discrimination to work in all sectors of activity and occupations and at all levels of responsibility. It incorporates the concept of affirmative action. (Endnote 33) The concept of "affirmative action" also differs from the concept of special measures of protection or assistance, laid down in Article 5, paragraph 2, of the Convention. This latter provision merely establishes that special measures of protection or assistance designed to protect various vulnerable groups or social functions are not deemed discrimination under the terms of the Convention; while the concept of "affirmative action" views these measures as the means to promote equality of opportunity of various social groups which are subject to discrimination. Measures of protection are established on a permanent basis (at least until such a time when technical development makes them redundant), whereas "affirmative action" should no longer be necessary as soon as the target social groups are in a position to exercise their rights to equality in practice.

167. Several countries have adopted provisions concerning affirmative action, thereby giving it a definition. In Australia, the Affirmative Action Act of 1986 (Endnote 34) provides that an affirmative action programme means a programme designed to ensure that appropriate action is taken to eliminate discrimination against women and to promote equal opportunity for women in regard to employment matters. In Belgium, a Royal Decree indicates that the aim of affirmative action is to redress de facto inequalities affecting women's opportunities. (Endnote 35) In a province of Canada, regulations stipulate that affirmative action programmes should redress the situation of those groups, including women, members of ethnic communities, disabled persons and indigenous peoples, who are subject to discrimination which is banned by law. (Endnote 36) In France, the Labour Code provides that a plan for equality in employment between men and women, which includes temporary measures directed only at women to make good any de facto inequalities affecting their prospects, may be negotiated in the undertaking. (Endnote 37) These definitions incorporate the basic characteristics of affirmative action: the elimination of discrimination, the promotion of equality of opportunity; and ways to ensure that the means to attain objectives are both timely and suitable.

168. Affirmative action programmes may be applied both in the public and private sector; however, the way in which they are applied in both sectors usually differs according to whether or not they are subject to the direct supervision of a national authority. (Endnote 38) They may be prompted by one or several parties concerned, by a recommendation of a body entrusted with applying the policy of equality or by a court ruling. It would seem that the success of these affirmative action programmes is very closely bound up with the dialogue between employers and workers, which must be as encompassing as possible in order to obtain the full support of all concerned. In this field, the bodies entrusted with promoting, applying and supervising these programmes have a vital role to play. (Endnote 39) Although some of these programmes have been established at the national -- even sometimes at the international -- level, (Endnote 40) the fact remains that, because of their very specific and practical nature, they are most effective within the enterprise. Most texts dealing with affirmative action programmes are backed up by regulations, guide-lines or information notes enabling those concerned to apply them as their framework and broad outlines are contained in law. As a general rule, affirmative action programmes contain four components: specific objectives as to the actual number of persons represented in the group covered by the programme; necessary measures to redress the effects of the discrimination noted; a timetable to attain the objectives set and apply measures planned to this effect; and supervisory machinery to monitor progress and assess the difficulties encountered in applying the programme, as well as to determine what adjustments should be made.

169. Most of the affirmative action programmes brought to the Committee's attention have been adopted to correct the effects of discrimination against women. Affirmative action programmes have also been directed at ethnic groups or disadvantaged groups (disabled workers, older workers). The wide range of social and economic situations, and by extension, the problems to be solved, determine the content of these programmes. The Committee has given several examples of affirmative action programmes in previous Chapters to illustrate the way in which several countries fulfil their obligations in application of the Convention. Other examples will be given in the following Section. They were selected on the basis of information available. In this respect, the Committee regretted to note that governments provided little information on practical measures taken to apply the principle of the Convention. (Endnote 41)

Section 2: Measures to ensure the implementation of a national policy of equal opportunity and treatment

170. Article 3 of the Convention specifies some of the areas and means of action which must be covered by a national policy aimed at promoting equality of opportunity and treatment in employment and occupation without discrimination on one of the grounds referred to in the Convention, in order to ensure that it is effectively applied. Under this Article, each State which has ratified the Convention undertakes, by methods appropriate to national conditions and practice, to discharge different kinds of obligations: on the one hand, obligations to take action, whether to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy of equality (Article 3(c)) (Endnote 42) or to pursue the policy in respect of employment under the direct control of a national authority (Article 3(d)) and in the vocational guidance, vocational training and placement services under the direction of a national authority (Article 3(e)); on the other hand, the State has an obligation as to means as regards the enactment of legislation and promotion of educational programmes designed to secure the acceptance and observance of the policy (Article 3(b)), and co-operation with employers and workers in promoting such acceptance and observance (Article 3(a)). The Recommendation specifies that each Member should also, where practicable and necessary, promote the observance of the principle of equality of opportunity and treatment in employment and vocational guidance, vocational training and placement services by encouraging its application in state, provincial or local government departments and in industries and undertakings operated under public ownership or control and by laying down conditions relating to such observance for eligibility for public contracts, grants and licences (Paragraph 3(b)). The Recommendation also provides for the establishment of appropriate agencies for the purpose of promoting general application of the policy of equality and, in particular, to take measures to inform the public, examine complaints and render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected (Paragraph 4). It also calls for continuing co-operation between the competent authorities, representatives of employers and workers and appropriate bodies to consider what further positive measures may be necessary in the light of national conditions to put the principle of the Convention into effect (Paragraph 9).

171. Before examining, in the following subsection, the application of the Convention to sectors under the direct control of a national authority and going on to consider ways in which the Convention can be applied more widely, one should recall here the role of legislation aimed at ensuring acceptance and observance of the policy of equality, which is most commonly expressed in such legislation. (Endnote 43) From the available information, it appears that the enactment of constitutional or legislative provisions or regulations on the subject has been, and still is, one of the most widely used means of encouraging acceptance and observance of national policy designed to promote equality of opportunity and treatment in employment and occupation. The number of texts adopted in a great many countries illustrates the importance of this occurrence, which should not be underestimated, although legislation may have focused to a greater extent, if not exclusively in certain cases, on certain grounds of discrimination. Article 3(b) of the Convention, in indicating that the State must, by methods appropriate to national conditions and practice, enact such legislation as may be calculated to secure the acceptance and observance of the policy defined in Article 2 of the Convention, does not impose a general obligation of legislating in all of the areas covered by the Convention. The State must enact legislation in cases where such intervention is an appropriate means of implementing national policy, taking into account national conditions and practice, but certain areas may be governed by other measures, such as collective agreements, which enable the principle to be satisfactorily applied without the need for legislative intervention. However, where rules are issued on a specific area covered by the Convention, the texts adopted should refer to the principle of equality of opportunity and treatment without discrimination on the grounds referred to in Article 1. Moreover, as regards the enactment of legislation, the Committee has rcalled above that, when provisions are adopted to give effect to the principle of the Convention, they should include all of the grounds of discrimination mentioned in Article 1 of the Convention. (Endnote 44) The scope of the provisions adopted varies considerably according to the nature of the text. Constitutional standards lay down general principles, the extent of whose application in practice varies considerably from one country to another. They may also provide for subsequent adoption of Acts designed to remedy particular forms of discrimination. (Endnote 45) Specific legislation adopted on the subject of discrimination often covers a number of grounds which are limited to sex or race. The problem of inadequate coverage arises in a different form in the case of labour codes or specific legislation on labour or employment which is limited in scope to salaried employees, who account for a proportion of the active population which varies considerably from one country to another, according to the country's level of economic development. Moreover, certain salaried employment, in particular in the public service and certain branches of activity such as the merchant navy, often lies outside the scope of labour codes, and no labour code can secure equality of opportunity and treatment under the terms of the Convention for self-employed occupations. (Endnote 46) However, inclusion in this type of legislation of provisions designed to apply the principle of equality would serve a dual purpose: on the one hand, it would make it possible to cover every aspect of employment (recruitment, working conditions, remuneration, dismissal, retirement, social security, etc.) and, on the other, by granting rights to all workers without distinction, such legislation would cover all of the grounds of discrimination referred to in the Convention. The contents of constitutions, legislation and regulations adopted have been examined in the relevant sections of the various Chapters of this Survey, and there is therefore no need to recall them here.

Subsection 1: Application of the principle of the Convention to sectors under the direct control of a national authority

Employment under the direct control of a national authority

172. The Committee has already highlighted the importance of the State's responsibility in pursuing a policy of equality of opportunity and treatment in respect of employment under its control. The use of the methods of direct application of this policy available to the State is one of the obligations laid down by the Convention. The extent of the sector covered by the category of employment under the direct control of a national authority may vary considerably: in some countries, only part of the public service would be under such control, while in others, most employment falls in this category.

173. Many countries refer in their reports to constitutional or statutory provisions under which equality of citizens with respect to public employment is established, without specifying the conditions in which they are applied in practice. These conditions are of prime importance as regards matters such as recruitment, promotion or dismissal, particularly to secure representation of minority groups characterised by their race, colour, national origin or language and to increase representation of women in all types of employment under the control of a national authority. According to the available information, affirmative action programmes have been adopted in several countries. Concern to increase the overall number of members of disadvantaged groups in the public service, which is the prerequisite for their participation in the latter, is often coupled with the desire to secure representation of members of these groups at all levels of the public service, including the higher levels. Consequently, affirmative action programmes focus not only on recruitment policy, but also on issues related to training in employment which, to a great extent, determine promotion policy. Such programmes have features in common, regardless of the category of persons targeted: the aim is to increase the representation of such persons and multiply their job opportunities; the programmes differ in their approach and scope. The examples given below illustrate the common features and differences.

174. In Canada, the Public Service Commission has drawn up and is carrying out a programme to promote the employment of native peoples and visible minorities, with the long-term objective of ensuring that they are equitably represented in proportion to their availability on the labour market. The various programmes aim, on the one hand, to further the employment of these groups, by promoting public service employment as a viable career choice and, on the other, to improve career development and training of new recruits and people already employed. (Endnote 47) In Australia, a systematic approach to the identification and elimination of institutional barriers to equal employment opportunity in statutory authorities under federal jurisdiction has been adopted in the form of an Act. (Endnote 48) Part II of the Act sets out the minimum contents of an equal opportunity programme: informing employees of the contents and results of the programme; appropriate staff to administer the programme; consultation with appropriate trade unions; consultation with employees, especially those in the designated groups; collection and recording of relevant job statistics; examination of policies and practices to identify discrimination or lack of equal employment opportunity, etc. This legislation applies to women and a number of designated groups, namely aborigines, Torres Strait Islanders, people with disabilities and migrants whose first language is not English. In the Netherlands, the Government drew up a policy in 1983 aimed at reducing inequality between minority groups and other groups in society and to improve opportunities for members of minority groups to obtain middle- and senior-level jobs. Measures have been adopted to improve access of such groups to public sector employment, in particular in posts where they have contact with the public. Under the terms of an agreement concluded in April 1986 between the Government and the most representative organisation of the ethnic minority of Moluccan origin, the Government expressed itself in favour of giving a fair share of jobs in the public service to ethnic minorities and of increasing access to public service employment for such groups. (Endnote 49) In New Zealand, the Government has stated that programmes have been drawn up with a view to increasing the number of Maoris and Pacific Islanders and to improve access of these groups to senior positions. In Sweden, affirmative action with regard to women is governed by agreements on equal opportunity in the public sector concluded between the National Agency for Government Employers and trade union organisations. In the Philippines, a Letter of Instructions enjoins all ministries, offices, agencies, local governments and government-owned and -controlled corporations to take affirmative steps for the promotion, regardless of sex, of equality of employment. It suggests that qualified women be appointed or recommended for appointment to local or national positions with planning, policy and decision-making functions. (Endnote 50) In the Federal Republic of Germany, a Directive adopted in 1986 provides, inter alia, for measures to increase opportunities for recruitment of women in sectors where they are under-represented and to improve their opportunities of career development and promotion. (Endnote 51) In Austria, plans of action have been carried out in administrations as regards hours of work, training courses, recruitment, promotion and job classification under a programme for the promotion of women in the federal public service, targeted indiscriminately at men and women public servants in the lower categories where there is a high proportion of women, based on the idea that any measure for the improvement of working conditions of staff in these categories will have a direct and immediate effect on women. (Endnote 52)

175. In a number of countries, the existence of a more or less extensive public sector or the absence of a private sector may add to the State's responsibilities as regards application of national policy. One of the main objectives laid down in the guide-lines for the economic and social development of the USSR for the period 1986-90 is the improvement of working conditions for women. (Endnote 53) Measures are being adopted to create special working conditions for women which are more favourable than those for men as regards work schedules and hours of work, taking into account family responsibilities in general and the upbringing of children, particularly infants. In addition, the social development plans of the enterprises set forth the tasks for the improvement of the working and living conditions of women in the light of local possibilities. Nation-wide measures for the improvement of the conditions for the participation of women in public production, the conditions for the development of women themselves and their children are supplemented by relevant measures adopted at the local level. (Endnote 54) In Poland, the Council of Ministers has issued a programme of action to improve the socio-occupational status and living conditions of women, covering 22 economic sectors and to be implemented from 1987 to 1990. (Endnote 55) In other countries, affirmative action programmes are viewed as essential elements of human resource management within the enterprise and of productivity improvement. (Endnote 56)

176. The economic difficulties encountered in some countries have, in certain cases, entailed reductions in the resources allocated to such affirmative action programmes, which have a detrimental effect on the achievement of equality of opportunity for the persons concerned and reinforce existing discrimination. (Endnote 57) The Committee has already emphasised that pursuing a policy of equality of opportunity in public sector employment is of particular importance "as an instrument for promotion and integration, and may open the way to all other measures. It has an outstanding role to play in setting an example; ... At the same time, public employment constitutes an area in which the problems of discrimination arise in a particularly sensitive manner; inequality is felt here much more, since the attitude of the State itself, through its representatives, is in question". (Endnote 58) The credibility of a policy of equality of opportunity in the eyes of the public depends to a great extent on whether such a policy is applied in the public sector.

Employment for the performance of public contracts

177. The performance of public contracts is an area in which the public authorities may have means of directly influencing employment practices. (Endnote 59) The legislation of several countries contains provisions to the effect that clauses relating to equality of opportunity and treatment should be included in public contracts. (Endnote 60) The Committee considers that the possibility of resort to this method of application of the principle of equality of opportunity and treatment should be given careful examination in other countries and that information should be provided in this regard. A Federal Contractors' Programme was set up by the Federal Government of Canada in 1986 under the Employment Equity Act. Companies employing 100 persons or more and who wish to bid on contracts amounting to a certain sum to supply goods and services to the Federal Government are required to commit themselves to implement employment equity and to certify this commitment as a condition of their bid. The terms and conditions of this commitment include several criteria such as the establishment of the goals for the hiring and promotion of designated group members, (Endnote 61) the elimination of policies or practices that hinder designated group members, and the adoption of special measures to ensure that the goals are achieved. Such enterprises may be subject to on-site compliance reviews and, if failures to implement employment equity are observed, sanctions will be applied, including the eventual exclusion of the employer from future government business.

Training and vocational guidance

178. In requests addressed directly to several countries, the Committee asked governments to state what measures have been adopted to ensure that the principle of equality of opportunity and treatment laid down in general and sometimes restrictive terms in their constitutions is applied in practice, and whether such application takes the form of specific provisions in legislation or regulations, or is carried out through administrative measures or under court supervision. Several countries stated that the policy of equality of opportunity and treatment in training was being applied through the provision of universal and free primary education and free technical and vocational education, as well as assistance towards pursuing studies and acquiring occupational qualifications, (Endnote 62) including training in employment. In other countries, emphasis is placed on measures to supplement overall training policy. A number of developing countries have limited resources for training, which, in practice, constitutes a barrier to equality of opportunity for the entire population. where there are not sufficient resources to set up or maintain a system of universal education adequate to cover the needs of pupils of both sexes, only a minority has the opportunity of achieving the necessary educational level for admission to vocational training. Such difficulties may be, to a fairly large extent, palliated by literacy programmes aimed at certain population groups, but the resources for vocational training are also limited, making it impossible to cover all of the persons with potential ability. In these conditions, it is necessary to have a system of selection, from which it is essential that care be taken to eliminate any discrimination by basing such selection exclusively on an objective assessment of candidates' abilities and knowledge.

179. Training is the key to promotion of equality of opportunity. The Committee has stated above that any discrimination in access to training will be perpetuated and intensified at the later stage of employment and occupation. In its previous General Surveys on the application of the 1958 instruments, the Committee emphasised the large number of measures taken in most countries with a view to promoting, in law and in practice, the access to training of members of disadvantaged groups. The available information always indicates that efforts are being made to this end, but the Committee notes that in countries affected by economic difficulties, training programmes are reduced or even abandoned for lack of resources. It is likely that members of disadvantaged groups are the first to be affected by such restrictions. Bearing in mind that training is a form of economic investment in future productivity, the consequence of such a reduction of resources will be to deprive society as a whole of a considerable growth potential. Observance of the policy of equality of opportunity and training is not a superfluous element whose elimination would only result in budget savings, but a means of securing full participation of the entire population, without exception, in economic activity.

180. Affirmative action undertaken in this respect is partly aimed at increasing the participation of members of disadvantaged groups in training activities in general, and usually means increasing the number of participants from such groups. As a result, school attendance of girls is increasing in many countries. However, when looking at the overall figures, care must be taken to examine the differences which may exist in the attendance rate of girls, for example between rural and urban areas, or the drop-out rate of girls. In this respect, the Committee recalls that universal compulsory and free primary education is one of the cornerstones of a policy of equality of opportunity and treatment in employment and occupation. (Endnote 63) In some cases, mechanisms will be set up to allocate places according to a quota system or reserving them for members of disadvantaged groups. Affirmative action may consist of raising the occupational qualifications of members of disadvantaged groups with a view to improving their chances of promotion or remedying various forms of occupational segregation which they may be subject to.

181. Preference may be given to members of ethnic minorities in admission to schools and colleges. In India, a wide range of measures has been set up, including grants, subsidised meals, places in university accommodation and the construction of schools for children of scheduled castes and tribes. The Government has stated that the national education policy adopted in 1986 and the plan for its implementation aim to treat members of scheduled castes and tribes on an equal footing with other members of the population at all stages and levels of the programmes. In particular, at least 75 per cent of children aged from 11 to 14 will attend school until they reach the educational level necessary for admission to higher education; in order to achieve this, authorities must take action by encouraging families to send their children to school, by recruiting teachers from scheduled castes and tribes, by adapting curricula to the interests of such tribes and by printing textbooks in vernacular languages. While it is usually for the state concerned to determine measures for the promotion of training of scheduled castes and tribes, the central Government plays an important role by adopting directives and incentive measures. A programme subsidised by the central Government has been included in the Seventh Plan (1985-90) with a view to increasing the capacity of industrial training institutes in the areas with the highest concentration of minorities in ten states. In Spain, projects in support of the marginalised population, which includes a large number of gipsies, have been set up under the Royal Decree on compensatory education, which provides for the allocation of funds and personnel for especially underprivileged sectors of the population. (Endnote 64) These projects comprise a number of different aspects: schooling at district public establishments for children who previously attended centres operated by the National Secretariat for Gipsies; locating and enrolling children who are not attending school; providing support personnel and material resources to reinforce the schools attended by children from the marginalised population; creating vocational classes for children aged 14 to 15 who are not attending school; training of teachers; and concluding agreements with various associations to examine particular situations as regards the gipsy population and to work out specific educational projects. (Endnote 65) In Brazil, with a view to giving the same opportunities to candidates from all social backgrounds, measures have been proposed for a more democratic access to higher education (grant of scholarships, evening courses and other non-traditional approaches to education). (Endnote 66)

182. In a great many countries, emphasis is being placed on equality between women and men in education and training and measures are being adopted to secure equality in primary, secondary and higher educational establishments. Such equality in education and training involves changing programmes and educational materials and methods to promote a positive attitude towards women's aspirations and abilities, and taking measures to provide women with fair access to education and training and with ancillary services such as child care. (Endnote 67) In some countries, particular attention is given to young women seeking their first job and to women who stopped working for some time, for example to look after their children, and who wish to return to work and need to refresh their occupational knowledge.

183. In the USSR, ministries and departments fix annual targets for the enterprises and organisations subordinate to them, relating to vocational training and improvement of skills of women workers. The trade union bodies have set up procedures to supervise the application of such measures and to raise the level of vocational training of women workers and the general education level of women in the work collectives. Since 1979, the annual targets for training and improvement of skills of workers set by enterprises include special measures for women. Improvement of skills or retraining may take place at the woman's own initiative or be suggested by the management or the trade union, taking her wishes into account. (Endnote 68)

184. Measures have been adopted in different countries to correct situations of sex-based occupational segregation in training. (Endnote 69) Thus, in Niger, the Vocational Training and Further Training Centre has been opened to female students, which was not the case up to 1984, since the trades in which it provides training (carpentry, electricity, welding, mechanics, etc.) have, because of prejudice and tradition, been considered to be exclusively male occupations. (Endnote 70) In Algeria, the implementation of the educational reform and the efforts made by the Ministry of Labour and Vocational Training to ensure that girls are not limited to training for traditionally female occupations (sewing, secretarial work, paramedical occupations, administration, teaching, etc.) has broadened the range of careers and vocational training trades, which should increase from 13 in 1980 to 41 at the end of the 1985-89 Plan. In India, a working group set up by the Planning Commission to discuss issues relating to science and technology for women has noted the constraints on girls wishing to embark on a scientific career and proposed a series of practical measures to encourage them to take up such careers. (Endnote 71) In Luxembourg, training in welding has been organised for unskilled women aged under 25. (Endnote 72) In Hungary, the Government has initiated various measures in education, training and vocational guidance with a view to remedying the occupational imbalance affecting women, in particular by information campaigns, improvement of vocational guidance for boys and girls in the last year of compulsory education as well as for students approaching high-school or university graduation, support for women choosing new trades and by a more up-to-date approach to specialised training with a view to achieving radical changes in the pattern of female employment. (Endnote 73) In Cyprus, the Government stated that vocational training programmes were being organised and carried out in order to attract women workers to occupations which have traditionally belonged to men. (Endnote 74) In Jamaica, the Women's Bureau has made an effort to promote vocational training of women in branches of activity where they are not traditionally employed. In Guyana, training courses have been implemented to enable women to acquire skills other than traditional ones. The same applies to members of disadvantaged groups. Taking into account the need to broaden training opportunities for girls is a first step in carrying out affirmative action for the practical application of the policy of equality of opportunity and treatment without discrimination. It is not, however, sufficient. In Sri Lanka, the number of girls attending technical and vocational training courses increased to 27 per cent in 1984. This quantitative increase was coupled with an occupational diversification, since the largest female enrolments in 1978 were in commercial education, but this figure was exceeded in 1984 by attendance in training programmes in industrial and similar activities, which more than doubled from 1978 to 1984. (Endnote 75) In France, a survey has shown that only a limited number of young girls are attracted to industrial technical training in new technologies; the proportion of girls is under 5 per cent in training for the senior technician's certificate in industrial data-processing, electronics or automated mechanics and 8 per cent in university courses in mechanical or electrical engineering. (Endnote 76) New technologies do not themselves affect the "male" image of factory jobs. In its Medium-Term Programme on equal opportunities for women, the European Economic Community emphasised that the introduction and extension of new technologies could be a historic opportunity for women, but also involve the risk, in present conditions, of increased occupational segregation to the disadvantage of women. This risk stems partly from inadequate training, often due to the low interest in the area mainly because of traditional views about the roles of men and women, and partly from the fact that the latter are generally employed in the positions which are most likely to change in content or be phased out. (Endnote 77)

Subsection 2. Co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of the national policy

185. In prescribing that Members should "seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance" of the national policy, the Convention (Article 3(a)) emphasises the necessity for active co-operation with these organisations. (Endnote 78) Co-operation with employers' and workers' organisations is, in general, aimed at in several respects and first of all for the preparation (Endnote 79) and monitoring of the application of measures adopted within the framework of the national policy referred to in Article 2 of the Convention. Secondly, at the level of the branch of activity, the undertaking or the establishment, their action is essential to the application in workplaces of the principles of the Convention. Furthermore, it is worth recalling that according to the Recommendation (Paragraph 2(f)), "Employers' and workers' organisations should not practise or countenance discrimination in respect of admission, retention of membership or participation in their affairs". (Endnote 80) Acceptance and observance of the policy of equality of opportunity and treatment should be reflected in promotional activities on behalf of women and disadvantaged minorities within the employers' and workers' organisations themselves.

186. By using the term "co-operation", which evokes the idea of work performed jointly, the 1958 instruments go beyond the requirement of consultation of employers' and workers' organisations. (Endnote 81) The extent of this co-operation will depend on the characteristics of the industrial relations systems in the various countries and the degree of involvement of employers' and workers' organisations in existing machinery. It must allow for the positions of the various parties (Endnote 82) in respect of the areas covered by the Convention (guide-lines and options for schooling and vocational training, rules and operation of placement services, discrimination-free active employment policy, etc.) to be taken into consideration. This co-operation may proceed from the representation of employers and workers on various bodies responsible for preventing discrimination, and for the promotion, application and enforcement of the policy of equality of opportunity and treatment dealt with in Subsection 3 below. Bodies of this kind also provide an opportunity for governments, employers and workers to co-operate with other bodies such as those which represent the interests of certain categories of persons defined by characteristics such as race, colour, sex, religion, etc. or civic organisations for the defence of human rights.

187. Collective agreements are one of the areas where the outcome of the co-operation with employers' and workers' organisations should be clearly apparent when it comes to applying national policy. As the Recommendation states, the parties should ensure "that collective agreements contain no provisions of a discriminatory character in respect of access to, training for, advancement in or retention of employment or in respect of the terms and conditions of employment". (Endnote 83) In Peru, the Ministry of Labour is entrusted with encouraging the parties to take part in collective bargaining "by facilitating conciliation, mediation and arbitration and the institution of standards and procedures for resolving labour disputes so as to guarantee equality of treatment and of assistance". (Endnote 84) Some collective agreements have clauses stipulating that sex, race, political opinion, religious beliefs or trade union membership may not be taken into consideration. (Endnote 85) In Tunisia, the Government has stated in its report that all collective agreements now in force establish the principle of equality between men and women in respect of remuneration and everything connected with conditions of employment. In Belgium, a collective agreement reached in December 1982 within the National Labour Council provides that the recruitment and selection of workers may not involve discrimination based on age, sex, marital status, medical history, nationality, political or philosophical beliefs, membership in a trade union organisation or any other organisation. Some agreements thus include a wider range of grounds of discrimination than those prescribed in Article 1, paragraph 1(a), of the Convention.

188. The degree of protection against discriminatory clauses that might be included in collective agreements or in works agreements varies according to the country. Generally, collective agreements may not contain provisions that are less favourable than those laid down in labour laws and regulations and may not contravene legislative provisions or regulations concerning public order. In a number of countries the law provides for collective agreements to be registered with or approved by the competent authority, which makes it possible to keep a check on the legality of the provisions contained therein in so far as the positive law of the country has standards prohibiting discrimination. In Swaziland, the Labour Court may refuse to register a collective agreement which entails discrimination based on one of the grounds set out in sections 29 and 35 of the 1980 Employment Act (race, colour, religion, marital status, sex, national origin, tribal or clan extraction, political affiliation or social status). (Endnote 86) In many countries, legislative provisions make it possible to extend the effects of a collective agreement, which originally bound only the employers and workers represented by the parties which had negotiated it, to all employers and workers in a particular branch of activity or a certain region, or to both. (Endnote 87) In order to be extended, the collective agreements must contain provisions on equality of opportunity and treatment (Endnote 88) or on equality of remuneration. (Endnote 89) It is sometimes specified that parties to negotiations must act fairly and without discrimination (Endnote 90) and they may incur liability if they do not do so. In many countries the law stipulates that provisions in individual and collective agreements that would result in establishing discrimination are null and void. (Endnote 91) In some cases the nullity is extended to works rules which have not always been negotiated. (Endnote 92) In France, the Labour Code stipulates that the internal rules of an undertaking may not include provisions that are prejudicia to employees in their work on the grounds of their sex, habits, family situation, origin, opinions or beliefs or handicap. (Endnote 93) In some countries the importance of the joint contribution of the parties to the collective negotiation of agreements free from discrimination has raised the issue of the liability of the signatory organisations to agreements that introduce or maintain discriminatory practices. (Endnote 94) Under some provisions, it is a discriminatory or unfair practice for an employers' organisation and/or a workers' organisation to establish or pursue a policy or practice or to enter into an agreement affecting conditions of employment that deprives an individual or a class of individuals of any employment opportunities on prohibited grounds. (Endnote 95)

189. It is apparent from the information available that the influence of laws and regulations on equality has in many cases helped to eliminate provisions establishing direct discrimination that were included in collective agreements. In Austria, a study by the Ministry of Labour on the effects of the Equality Act has shown the extent to which the provisions establishing discrimination in employment between men and women have been eliminated from collective agreements. (Endnote 96) But the latter may also contain provisions which, though seemingly neutral, result in indirect discrimination against women or members of disadvantaged groups. (Endnote 97) A study undertaken in France has shed light on two positive points: clauses on occupational equality have been introduced into most new agreements and certain provisions which had discriminatory effects have been removed. The conclusion of the study, however, recalled that in using and sometimes supplementing provisions of the Labour Code in fields such as the right to organise, representative staff institutions, annual leave and the consequences of compulsory national service on the contract of employment, collective agreements have served as "information transmitters" -- though they have not yet done so in respect of occupational equality. (Endnote 98) In Sweden, an initial agreement on equality reached in 1977 between the Swedish Employers' Confederation (SAF), the Swedish Trade Union Confederation (LO) and the Federation of Salaried Employees in Industry and Services (PTK) was revised in the light of the Equality Act in 1983. The Equal Opportunities Agreement of 3 March 1983 includes among its aims equality of opportunity between men and women at work. (Endnote 99) Several branch agreements are based largely on this general agreement. The measures adopted to promote equality are part of a series of other measures and machinery aimed at obstacles outside the labour market but which prevent women and members of disadvantaged groups from having access to it or which keep them in subordinate positions. In this connection, to appreciate the extent of the policy of equality of opportunity and treatment that has been undertaken, mention should be made of the role played in this policy by parental leave, measures in respect of child minding and child care and the reform of curricula. In Norway, the Confederation of Trade Unions in Norway (LO) and the Norwegian Employers' Confederation (NAF) have reached a framework agreement providing that all workers, without distinction based on sex, shall have equal opportunity in respect of employment and training. They are to enjoy equal treatment in respect of recruitment, remuneration, retraining and promotion. Following this agreement, local employers' and workers' organisations reached agreements making provision for action programmes. In Italy, at 1 June 1987, 26 national collective agreements covering 7,803,400 employees, of whom 3,187,050 were women, included clauses providing for affirmative action to remedy past discrimination and to promote equality of opportunity between men and women. In several sectors of activity (commerce, textiles) provision has been made for joint committees to experiment with affirmative action programmes and to see whether te projects negotiated at the level of the undertaking correspond to the criteria set out in the collective agreement. (Endnote 100)

190. Application of the principle of equality and implementation of programmes involving affirmative measures in the undertaking have in some countries led to the adoption of measures conferring a specific competence in this area on the bodies which represent the staff. In the Netherlands the works councils maintain a general watch to prevent discrimination in the undertaking and to promote equality of treatment between men and women. (Endnote 101) In China, under new regulations adopted by the All-China Federation of Trade Unions, all local trade unions are to form women's committees (as a part of the trade union committees) to fight sexual discrimination and to protect women's rights. (Endnote 102) The objective of these committees is to secure the same treatment for women as for men in education, employment and family role and to encourage women to play a more active part in social affairs. In France employers must submit a written report to the works council or, where there is no works council, to the employees' representatives on the comparative situation of general conditions of employment and training for men and women in the undertaking. This report, which may be modified to take account of the views of the works council, is then passed on to the labour inspectorate and made available to any employee upon request. (Endnote 103) State financial assistance is provided in certain cases in the form of an occupational equality contract. (Endnote 104)

191. In several countries collective bargaining in the undertaking has led to the adoption of affirmative action plans or programmes whose general characteristics are similar to those of the programmes implemented in the public service. (Endnote 105) In some countries these programmes can be negotiated between the parties or imposed by the courts following complaints lodged by workers' organisations (Endnote 106) or by the bodies responsible for applying the policy of equality. (Endnote 107) In the latter case co-operation with employers' and workers' organisations will sometimes be very limited or even non-existent. The harmonising and reconciling of two bodies of laws and traditions which differ considerably -- on the one hand, labour legislation and bargaining between employers and workers and, on the other hand, general anti-discrimination legislation whose application is a matter for government agencies -- will come about only through co-operation with employers' and workers' organisations. Consequently the Committee considers that particular attention should be given to the arrangements for the participation of employers' and workers' organisations in the deliberations of the government agencies and bodies set up to ensure the promotion, application and supervision of policies for equality of opportunity and treatment.

192. To the extent that employers' and workers' organisations have a major role in negotiating measures to promote equality, the question arises of the place and role in the trade unions of women members and members from disadvantaged groups. As regards women, obstacles to their participation in the activities of workers' organisations are well known: the lack of child-minding services, difficulties resulting from the timing of meetings for mothers -- or fathers -- who assume the burden of family responsibilities, lack of confidence in their capacities on the part of persons who have not yet been able to exercise these capacities, sexist attitudes on the part of certain male trade unionists, social stereotypes in respect of women and their domestic responsibilities all combine to impede their participation. Some unions have adopted policies and practices with a view to strengthening the position of women in the unions. In the United Kingdom the Trades Union Congress has issued a guide on affirmative action programmes dealing with programmes within trade union structures. The Swedish Union of Clerical and Technical Employees in Industry has, since 1981, adopted a programme to promote equality for the period up to 1987. Following a survey on the promotion of equal opportunities promotion carried out among 63 branch unions, a working programme for the promotion and evaluation of equality of opportunity was presented to the Union's Congress. The Australian Council of Trade Unions has published a training manual on affirmative action which states that if inequality in the unions is to be got rid of, a policy of equality will have to be followed and there will have to be willingness to take action. The following measures are suggested: evaluation of the number of women members and of women's participation at the various levels of representation and trade union management; examination of internal structures to pinpoint obstacles to broader female participation in trade union activities; remedial action (extra seats reserved for women on the executive bodies of sectors in which their participation is weak compared with that of the number of women members, setting up of women's committees or committees on equality of treatment with direct access to decision-making bodies, recruitment of women for permanent trade union positions, verification during elections that the list of candidates reflects the structure of the organisation's members); "positive discrimination" in favour of women for participation in trade union training courses; inclusion of questions of equality of opportunity and treatment in trade union courses. Furthermore the unions should make sure that their own employment practices are not discriminatory and organise their activities, meetings and training courses at times likely to suit women. At the international level, the programme of action of the International Confederation of Free Trade Unions (ICFTU) for the integration of women in trade unions was launched following the Fourth World Conference on Women organised by the ICFTU in April 1985. The programme makes provision for positive measures that should strengthen women's position in trade unions.

Subsection 3: Means of promotion and enforcement

A. General machinery for prevention, application and supervision

Administrative structures

193. Most governments indicated in their reports that the application and supervision of the principles of non-discrimination and equality of opportunity and treatment fall under the competence of labour authorities such as the Ministry of Labour, the employment office (Endnote 108) and the labour inspection service. (Endnote 109) Specifically, as regards the labour inspectorate, the supervision of the application of provisions concerning equal treatment is usually entrusted to inspectors who are generally responsible for ensuring the observance of labour legislation. (Endnote 110) Elsewhere, supervisory tasks are assigned to specialised services within the labour inspectorate. (Endnote 111) These inspectors often enjoy broad powers as regards access to premises and the inspection of files. (Endnote 112) The actions of labour inspectors within the framework of their supervisory function run the risk of being completely ineffective if employers and workers are not fully aware of their reciprocal rights and obligations and, especially if they are not convinced of the usefulness of applicable legislation. For this reason, Article 3, paragraph 1(b) of the Labour Inspection Convention, 1947 (No. 81), and Article 6, paragraph 1(b) of the Labour Inspection (Agriculture) Convention, 1969 (No. 129) provide that the labour inspection system shall "supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions". The advice and information furnished by labour inspectors is often aimed at informing employers and workers of the existence of legal provisions in force, providing explanations on their meaning and scope, and suggesting the best way of giving effect to these provisions. The supervisory and advisory functions reinforce and complement each other to the extent that both tend to promote the effective application of legal provisions for the protection of workers. It is thus especially important that labour inspectors be properly trained as regards questions concerning equality of opportunity and treatment, and be well versed in the corresponding provisions, so that they may offer pertinet advice and information in this area. Nevertheless, the Committee must note that very little information was received from governments on the specific action of labour inspectors in the effective application of provisions concerning equality. This lack of information on the role of labour inspectors and their efforts to obtain the observance of provisions concerning equality may be explained, in part, as the Committee has already noted in previous General Surveys, by the lack of human and physical resources needed to maintain suitable inspection services. (Endnote 113) Many inspection services are overworked, or lack qualified, trained and experienced staff to handle questions of equality and discrimination in employment and occupation. In this connection, the Committee notes that certain governments have taken initiatives with a view to reinforcing the action of the labour inspectorate, by training inspectors in matters concerning equality, recruiting specialised staff, and strengthening the participation of workers' representatives in the process of inspection. In particular, it notes that certain countries have adopted texts which expressly call for a co-ordination between the labour inspectorate and specialised agencies responsible for questions of equality. (Endnote 114) In Italy, regional commissions may undertake investigations within enterprises to verify that the principles of equality between men and women, established by the Act of 1977 on equality, are being observed; in carrying out this task the regional commissions collaborate with the labour inspection services. (Endnote 115) In addition to problems concerning the functioning of the labour inspectorate, there is also the question of its competence in cases regarding equality of treatment in employment, and especially in access to training and education; for this reason, it is useful to establish specialised agencies to monitor the application of the principles of Convention No. 111 in these particular areas.

194. Where there are specialised agencies to deal with questions of equal treatment, the Committee considers that measures to co-ordinate the work of these agencies and that of the labour administration, the public placement offices and the labour inspectorate should be given full consideration. It would seem appropriate to ensure co-ordination between agencies dealing at the national or regional level and the labour inspectorate, which acts at the level of the enterprise. Policies aimed at promoting equal opportunity and treatment in employment and occupation are usually made at the national level, but they are applied within the enterprise, among other places. Moreover, co-ordination between specialised agencies and authorities responsible for training and education may well contribute to a better understanding and more judicious application of the principles laid down in the Convention.

Bodies for the representation of staff

195. Trade unions, workers' representatives and works councils, as well as joint advisory committees, must play a role in the application and promotion of equal opportunity and treatment. (Endnote 116) The Committee considers that a greater awareness on the part of workers' representatives concerning problems of equal opportunity and treatment within the framework of their general mission of representing the interests of workers, coupled with a more effective use of information concerning equal opportunity and treatment, would tend to provide a favourable impetus to the implementation of the right to equality. (Endnote 117) In this context, the collaboration of workers' representatives with the labour inspectorate, with a view to reinforcing the efforts of the latter, would acquire its full meaning.

B. Specialised bodies to promote, enforce and supervise equality and prevent discrimination

196. Paragraph 4 of Recommendation No. 111 stipulates that appropriate agencies, assisted where practicable by advisory committees composed of representatives of employers' and workers' organisations, and other interested bodies, should be established for the purpose of promoting application of national policy of non-discrimination in all fields of public and private employment. These agencies should be able to take all practicable measures to foster public understanding and acceptance of the principles of non-discrimination; they should receive, examine and investigate complaints that the national policy to promote equality of opportunity and treatment is not being observed and, if necessary, by conciliation, secure the correction of any practices regarded as being in conflict with the policy; and consider further any complaints which cannot be effectively settled by conciliation and render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected. The Committee also notes that the International Labour Conference, in the resolution it adopted at its 71st Session, (Endnote 118) advocated the establishment of national tripartite machinery on the status of women workers and the strengthening of national equal opportunity bodies to stimulate action aimed at promoting equality of opportunity and treatment for women in economic and social life.

197. Since the last General Survey on the instruments under discussion, a growing number of countries have set up specialised structures to promote and apply the principles and policy of non-discrimination and equality of opportunity and treatment. These structures vary considerably as to the way in which they have been established, the area they cover, their composition, competence and functions. With all their diversity, (Endnote 119) they all reveal a growing awareness of the problems of discrimination in employment and occupation and the use and need of individual structures to better identify and cope with the problems involved.

198. Many specialised bodies had been set up under legal provisions, for instance within the framework of legislation on either racial equality or equality between men and women. (Endnote 120) Others have been established by decree or regulations. (Endnote 121) However, these bodies are sometimes set up by ministerial decision, especially when they operate at the level of one or more ministries. (Endnote 122) When a specialised agency is established under an order of the executive authorities, it is able, if need be, to adjust quickly to new conditions; however, if it is set up under legislation, it has the advantage of being more independent and established on a more permanent basis. What is more, since powers to enact and supervise legislation and national policy on equality of opportunity and treatment are often conferred upon bodies established by law, their scope for action is accordingly strengthened.

199. Some specialised agencies operate at the governmental or ministerial level: for instance, in several countries, competent ministries have been set up for specific population groups (Endnote 123) or ministers have been appointed especially to deal with equality issues. (Endnote 124) By setting up a Ministry or appointing a Minister with authority to promote equality of opportunity and treatment of various population groups, it is possible to identify and resolve problems at a high political level where decisions are more likely to be implemented and applied.

200. In some cases, specialised agencies from part of the administration, such as a department, division, board or service under the general supervision of a Ministry, (Endnote 125) or operate at the inter-ministerial level. (Endnote 126) Since these agencies are incorporated into governmental or administrative structures, they benefit from the administrative facilities and means these structures possess.

201. Many specialised agencies have the status of a committee, commission or advisory council under various ministries or legislative bodies. (Endnote 127) The International Labour Conference has considered that such bodies should be placed at a level that enables them effectively to monitor achievements and, where necessary, to influence or stimulate the initiation of relevant programmes in other parts of the government administration. (Endnote 128)

202. Some specialised agencies are collegial bodies made up of members who are often chosen by the executive authorities but enjoy independence under the law; some of them report to the legislative bodies on a regular basis. These are mostly specialised bodies with powers to enact and supervise provisions and principles of equality of opportunity and treatment. Examples of this type of agency include the Human Rights and Equal Opportunities Commission in Australia, the Human Rights Commission in Canada, (Endnote 129) the Equal Employment Opportunity Commission in the United States, (Endnote 130) the Human Rights Commission and Race Relations Conciliator in New Zealand, the Equal Opportunities Commission and the Commission for Racial Equality in the United Kingdom. In countries with a federal structure, specialised bodies have been set up at state level; similar powers to those of bodies at the federal level are often vested in their members, as is the case in Australia, (Endnote 131) Canada, (Endnote 132) and the United States. (Endnote 133)

203. These specialised agencies sometimes include representatives of employers' and workers' organisations. (Endnote 134) The Committee would like to stress once again how important it is that employers' and workers' representatives should participate in the drafting and implementation of equality of treatment and opportunity policies. This not only contributes to placing equality policies in the overall perspective of development and employment policies, but also helps to make workers and employers, as well as their representatives, more aware of problems of discrimination in employment and occupation. In its above-mentioned resolution, (Endnote 135) the International Labour Conference stated that bodies should provide a mechanism for systematic consultation with employers' and workers' organisations. Some of these bodies also include experts in the field of equality or representatives of the categories of persons to be protected. (Endnote 136) By co-operating with these agencies, experts on equality can make people more aware and help them have a better grasp of discrimination problems, whilst also providing vital expertise to overcome issues that are often complex.

Competence and functions

204. Some specialised agencies have general ratione personae competence; (Endnote 137) others are responsible for promoting equality of opportunity and treatment of specific population groups such as women, (Endnote 138) ethnic minorities (including indigenous populations) and religious minorities, (Endnote 139), the disabled, etc. Other agencies, on the other hand, have general ratione materiae competence covering protection against discrimination in employment and occupation, while still others deal specifically with matters relating to equality of treatment and opportunity in employment and occupation. (Endnote 140) Some agencies deal more specifically with public sector employment. (Endnote 141)

205. While a policy designed to promote equality of opportunity and treatment constitutes a whole, it is essential to achieve diversity in the approaches and measures adopted according to the problems to be solved. In some countries, the variety of measures needed to combat discrimination is reflected in the increasing number of agencies dealing with different aspects of equality of opportunity and treatment in employment and occupation: educational campaigns, particularly for employers and workers, promotional activities, co-ordination of activities of government agencies in matters relating to equality, review of draft legislation and regulations and checking conformity of legislation in force with the principle of equality in employment and occupation, investigation of complaints of discrimination. The wide variety of agencies is also a reflection of the fact that the elimination of discrimination on certain grounds, such as race, sex and religion, calls for special measures. Co-ordination between these bodies as provided for in Paragraph 9 of the Recommendation is one of the aspects which must be seriously envisaged by the national policy referred to in Article 2 of the Convention.

Consultation and promotion

206. Most of the specialised agencies essentially have consultative and promotional status, and their main functions are to promote equality of treatment and opportunity by carrying out studies, surveys and information activities, by assisting persons who are discriminated against, and by co-operating with or co-ordinating activities of non-governmental or governmental organisations. They are concerned with informing the public on matters relating to equality, mainly by organising seminars, meetings and consultative services, and by publishing periodical reports, studies and bulletins. These agencies may be involved in formulating and implementing preferential or affirmative action policies or participate in special development policies set up for certain population groups who are considered to be disadvantaged. It is not possible within the scope of this Survey to give more than an illustrative description of the functions of some of these agencies, to show how they contribute to the implementation of the national policy of equality of opportunity and treatment or of certain aspects of such a policy.

207. As regards equality between men and women, in Belgium, for example, it is the duty of the Commission for the Employment of Women, either at its own initiative or at the request of the Minister of Labour, to render opinions, carry out surveys or submit proposals for legislation or regulations in all matters directly or indirectly involving the work of women; (Endnote 142) in China, the women's committees set up within the local trade union committees participate in enterprise management, mainly in order to ensure that women are given the same treatment as men in education and employment and as regards their role in the family, and to encourage them to participate more actively in social life. They are involved in formulating and implementing policy and legislation in areas affecting women's interests; (Endnote 143) among the duties assigned to the General Department for Women's Affairs in Egypt is the formulation of a policy for the development of Egyptian women and of plans and programmes for the protection of women and their integration in development; (Endnote 144) in Ecuador, the National Council for Women (Endnote 145) is responsible for proposing policies, co-ordinating activities for the promotion of women in the public and private sectors, supporting the activities of the Women's Bureau, and gathering information on plans and programmes for the promotion of women; in Malawi, the National Committee on Women's Employment has undertaken a study on different aspects of the role of women in society, on topics such as women and employment, women and development and women in agriculture; in Poland, the Office of Plenipotentiary for Women's Affairs is responsible for co-ordinating the activity of all quasi-governmental organisations involved in the advancement of women; it carries out activities aimed at improving the living conditions for women. (Endnote 146)

208. Some agencies are involved in the promotion and implementation of equal opportunity policies for ethnic minorities, including tribal or indigenous populations. This is the case, for example, in India, where a Minorities Commission was set up in 1978 which, in addition to having powers relating to the application of legislation and the receiving of complaints, (Endnote 147) has the tasks of carrying out research and surveys and submitting proposals relating to a policy of equality for minorities; this Commission has published reports containing recommendations for the improvement of affirmative action policies in certain areas, including equality of opportunity in education. (Endnote 148) In Canada, the Indian and Native Affairs Secretariat grants resources to Indian organisations and individuals for development projects. In Mexico, responsibility for implementation of indigenous policy lies with the National Institute for Indigenous Affairs, which carries out indigenous community development projects and submits proposals to the Executive with a view to solving problems. In New Zealand, the Maori Economic Development Commission is responsible, inter alia, for identifying and evaluating the cost of positive development proposals for Maoris. (Endnote 149) In Norway and Sweden, co-ordinating committees have been set up to organise reindeer breeding, with a view to assisting the development of the Sami population. In this country, the ethnic minorities ombudsman is responsible, inter alia, for initiating affirmative measures against ethnic discrimination. In the Philippines, two offices have been set up for the Northern and Southern cultural communities respectively; among the tasks assigned to them is the co-ordination of development programmes and projects for the advancement of these communities. These offices are responsible for co-ordinating the formulation, integration and implementation of development plans aimed at assisting the members of these cultural communities in developing their lands. (Endnote 150) In this area in particular, promotion of equality taking into account the differences between indigenous peoples and other citizens calls for thorough knowledge of the problems. (Endnote 151)

209. As regards promotion of equality of religious minorities, the Committee has noted that the Philippines has set up an Office on Muslim Affairs, whose task it is to preserve and develop the culture, traditions and welfare of Moslem Filipinos, fully respecting their beliefs, customs, traditions and institutions; its functions include providing advice and assistance, co-ordinating and initiating development projects, serving as a central agency for assistance, carrying out studies and maintaining centres for ethnographic research and archives. (Endnote 152)

210. In Malta, a commission has been set up under the Constitution and Act No. XXXI of 1976 to settle cases of discrimination in employment on account of political opinion.

211. Other agencies are concerned with promoting equality of opportunity in the public service: in Australia, for example, the Equal Employment Opportunity Bureau, set up within the Commonwealth Public Service Board to deal with conditions of employment in the public service, is responsible for formulating policy concerning women and groups considered to be disadvantaged in the public service: aborigines, physically disabled persons and migrants. In Canada, the Office of Native Employment, set up with a view to increasing employment opportunities in the federal administration for Indians, examines recruitment practices hindering indigenous persons' access to employment and carries out publicity and awareness campaigns among natives in an effort to promote careers in the public service. Several consultative bodies have been set up in the federal public service to assist the Government in matters relating to affirmative action. A joint management-union commission on affirmative action and consultative committees have been set up to deal, respectively, with employment in the public service of visible minorities (1985), disabled persons (1978), affirmative action for women (1984 -- the chairwoman of the Royal Commission on the Status of Women is a member). A joint management-union commission has been set up (1985) to study the application of the principles of equality of remuneration in the public service. In the United States, the Civil Service Commission is responsible for examining and approving plans for affirmative action programmes submitted to it by departments and agencies, and for supervising the application of such plans; it publishes reports periodically on the state of affairs. In New Zealand, the Equal Employment Opportunity Unit of the State Services Commission is generally concerned with promoting, co-ordinating and pursuing policies, programmes and practices relating to equal employment opportunity in the public service. The State Services Commission set up this unit in 1983 and assigned it the task of applying its policies in recruitment, conditions of employment, career organisation, selection and promotion to ensure that equality of opportunity is not impaired on grounds of race, sex, country of origin, physical disability, marital status or personal convictions. (Endnote 153)

Review and policy formulation

212. Certain specialised agencies are primarily responsible for undertaking a systematic analysis of government policy as regards human rights, including the question of equality of treatment; they examine legislation, regulations and practices in the light of the principles of equality, rendering opinions in this connection; if necessary, they formulate recommendations concerning the amendment of legislation or the adoption of new provisions to strengthen the application of the principles of equality of opportunity and treatment. (Endnote 154) In Singapore, the President's Council for Minority Rights, set up pursuant to article 69 of the Constitution, is essentially responsible for bringing to the attention of Parliament any bill which may place persons of any racial or religious community at a disadvantage to another community. In certain cases, specialised agencies may play a pivotal role within the administration by offering local authorities concerned with the principles of equality a means for influencing the central government's policy, and thus applying Paragraph 3(b) of the Recommendation in the other direction. (Endnote 155)

Implementation and supervision

213. In addition to promoting, proposing or examining legislative provisions, some specialised agencies are responsible for the application and supervision of the principles of equality in employment and occupation. (Endnote 156) Since its last General Survey, the Committee has noted that agencies responsible for examining complaints and monitoring the implementation of anti-discriminatory provisions have been created in a number of countries, in particular to guarantee equality of opportunity and treatment between men and women. Some of these agencies may receive and initiate complaints (for example, Australia, Canada, New Zealand, United States); others are authorised to undertake investigations and issue opinions in response to complaints filed by persons alleging discrimination (for example, the Netherlands), or to receive and forward such complaints to the competent authorities (for example, Spain); still others are empowered to undertake investigations at their own initiative, rather than dealing with individual complaints (for example, Ireland, Portugal, United Kingdom), or issue opinions (for example, Austria). In certain countries both an Equality Commissioner (Ombud/Ombudsman) and a commission on equality are responsible for the implementation and supervision of legislation concerning equality between men and women (Finland, Norway, Sweden). (Endnote 157) In one of these countries, namely Sweden, recent legislation has established a two-year pilot programme pursuant to which an ombud/ombudsman and a commission monitor the implementation of the Act against ethnic discrimination. (Endnote 158)

214. The procedures followed by specialised agencies which are responsible for receiving and investigating complaints vary from one country to another; in general, however, they proceed by means of inquiries and conciliation; where this is of no avail, they are sometimes authorised to resort to coercive measures by initiating action in court. (Endnote 159) Certain specialised agencies are competent to examine the application of anti-discriminatory provisions in the public sector: indeed, certain agencies have been instituted especially for this purpose, (Endnote 160) while others are competent at once for the public and private sectors. (Endnote 161) As a general rule, nothing that has been said or done during the conciliation proceedings may be used as evidence in subsequent proceedings. In addition to protecting the parties, such a situation also facilitates conciliation: parties to a dispute are unlikely to engage in constructive negotiation if there is a possibility that their arguments may be presented as evidence during a subsequent inquiry or hearing. (Endnote 162)

The effectiveness of specialised bodies

215. The effectiveness of specialised agencies in promoting and enforcing guarantees for equal treatment depends, in particular, on the scope of these guarantees under national legislation and on the powers assigned to these agencies; specifically, the effectiveness of commissions responsible for supervising the application of provisions concerning equality depends not only on their powers of investigation and conciliation, but also on the extent to which they may enforce compliance with their recommendations, either by referring the matter to courts, or by the binding nature of their decisions. The effectiveness of these specialised agencies also depends upon the human and financial resources available to them for the discharge of their responsibilities, for without adequate resources, their functions remain hypothetical and their actions hampered. The International Labour Conference emphasised in its above-mentioned 1985 resolution that agencies responsible for ensuring equality of opportunity should be sufficiently well staffed to carry out their tasks. (Endnote 163)

Subsection 4. Remedial procedures

216. The application of a policy of equality of opportunity and treatment in employment and occupation depends partly on the appeal procedures available in the event of allegations of discrimination. It is important to remember, however, that complaints concerning individual situations should be considered as symptoms or indications that can lead to the detection of practices of exclusion or differential treatment applied in general to a group of persons with identical characteristics. Resort to a complaint or legal action by the person discriminated against cannot be considered to be sufficient in itself to guarantee equality of opportunity and treatment. It entails risks in relation to the objective of equality in so far as an unsuccessful legal action can hold up the development and progress of this equality for several years and thus delay recognition of new concepts of a general or abstract principle. Moreover, in many cases individual action will not be considered justified where the facts involve indirect or systemic discrimination against the member of a group by virtue of membership in that group. Means of appeal vary according to the industrial relations systems or the laws of the country. Normally the complainant may go before the competent courts or, in some countries, as already stated, specialised bodies which have powers of inquiry and conciliation for dealing with complaints of discrimination; (Endnote 164) where the person concerned works in an undertaking he or she may, in an appropriate case, exhaust the possibilities of internal grievance procedures, (Endnote 165) refer the matter to the labour inspectorate, which often has powers of investigation or conciliation, (Endnote 166) or take the case to the competent bodies in respect of individual labour litigation. Traditionally, the bodies called upon to give rulings on alleged cases of discrimination have been the ordinary, civil (Endnote 167) or penal courts; sometimes the civil courts have a special panel for labour cases, (Endnote 168) but in many countries the laws and regulaions now confer competence on more specialised bodies: labour tribunals, industrial courts, etc. (Endnote 169) Sometimes the complainant has several possibilities of appeal procedures depending upon the nature of the complaint. (Endnote 170) In some countries, individual disputes concerning the application of provisions on equality of treatment are taken before special bodies comprising representatives of workers and of employers who try to settle the dispute by conciliation. (Endnote 171) Sometimes a labour tribunal that has been seized of a case refers the dispute to a specialised body for settlement or inquiry. (Endnote 172) In one country which has ratified the Convention, a person who alleges that there has been discrimination in recruitment for the public service based on religion, race, sex, caste or tribe may submit a petition to the Supreme Court. (Endnote 173)

217. In the public service, appeals procedures may entail the intervention of a joint body (Endnote 174) or of a specialised body on equality issues which sometimes is also a joint body. The proceedings often take place before the courts or bodies which in general are responsible for legal enforcement in the public service. (Endnote 175)

218. Whatever the machinery set up, affording remedies for the harm suffered runs into certain problems relating in particular to the often excessive slowness of the procedure, to difficulties connected with the burden of proof, the fear of initiating proceedings alone and that of exposure to reprisals, and the possibility for the employer of discharging a breach by simply paying compensation. The institution of accelerated procedures, which are cheap and easily accessible, involving the settlement of the dispute by conciliation, to remedy acts of discrimination in employment and occupation, is an important element in the application of the policy to promote equality of opportunity and treatment in employment and occupation. This need is felt particularly in cases of discrimination in recruitment and even more so as regards access to education and vocational training for, in such cases, it must be possible for the rights of the person who has been discriminated against to be restored quickly to enable him or her to enter a particular job competition, for example, or the training course in which he or she wanted to participate. (Endnote 176) Specialised bodies may be the most suitable way of ensuring the application of the principle of equality of opportunity and treatment.

Exercise of rights of complaint

219. As a rule it is the person who considers himself or herself discriminated against and who wishes to seek redress that is personally responsible for exercising his or her right of appeal. As the Committee noted in previous General Surveys, (Endnote 177) it should be possible for proceedings to be set in motion other than by the filing of a complaint by an individual worker. Lodging a general complaint covering a number of workers makes it easier to assume the burden of proof, probably reduces the risk of reprisals, obliges the employer to find valid arguments to defend his or her position and is thus also likely to serve as a deterrent to discriminatory action.

220. The legislation of many countries provides for trade union organisations to institute proceedings on equal treatment on behalf of their members, whether the action is brought before a court or a specialised body. (Endnote 178) In most cases a trade union must be duly authorised to act on a worker's behalf. In certain cases, however, it may take legal action without prior authorisation from the person concerned, (Endnote 179) though the latter may sometimes object. (Endnote 180) In certain cases the alleged victim of discrimination cannot take legal action individually if he or she is a member of a trade union, unless the trade union itself fails to initiate such action. (Endnote 181) In one country, proceedings to ensure compliance with the legal provisions prohibiting discrimination in offers of employment or in the procedures followed for the purpose of filling a vacancy may be instituted by bodies corporate enjoying full legal capacity whose work includes promoting the interests of persons who would be entitled to lodge complaints. (Endnote 182)

221. In some countries class actions may be brought in order to arrive at a decision affecting all the workers in the category that is being subjected to discrimination. Use of this procedure has been instituted in the United States, where class actions may be brought under Title VII of the Civil Rights Act of 1964. These actions may be brought, however, only under certain conditions relating to the number of persons involved, the common nature of the questions of law or fact and of the defences, and the risk of inconsistent judgements in the event of separate actions being brought. (Endnote 183) Similar conditions apply to the lodging of class actions in Australia. (Endnote 184) Class actions are also recognised in the legislation of New Zealand, (Endnote 185) in the legislation or practice of Canada (Endnote 186) or in case law as, for example, in India with respect to equal remuneration. (Endnote 187)

222. In some countries the legislation on equal treatment empowers the body responsible for enforcement of the law to bring legal action on behalf of the complainants on its own initiative. The specialised body may bring before the courts any disputes that it has not been possible to settle by conciliation. (Endnote 188) It must be borne in mind, moreover, that the labour inspectorate, which has general responsibility for ensuring the enforcement of labour laws and regulations, is sometimes empowered to bring an action before the courts (Endnote 189) or the public prosecutor's office. (Endnote 190) The possibility for an alleged victim of discrimination to be represented by a trade union, together with class actions or actions brought on their own initiative by the authorities in the public interest -- the application of legislation with respect to equality being considered a matter of public interest -- may be an additional means of applying the policy of equality of opportunity and treatment.

Financial assistance

223. The prospect of incurring significant financial costs may deter a person who has been victimised by discrimination from seeking relief. The cost of proceedings can well be prohibitive for a person who does not enjoy the benefit of financial assistance, legal aid or the backing of a trade union. For this reason, a number of countries stipulate that complainants are entitled to assistance during the course of proceedings instituted to exercise their rights. (Endnote 191) In a certain number of countries, labour legislation provides that all proceedings concerning labour disputes shall be free of charge. (Endnote 192)

Burden of proof

224. One of the most important procedural problems that arises when a person alleges that there has been discrimination in employment or occupation is connected with the fact that the burden of proving the discrimination underlying the act complained of lies with the complainant, which may represent an insurmountable obstacle as regards affording remedies for the harm suffered. While at times the evidence can be collected without undue difficulty (in the case, for example, of advertisements for job vacancies where the discrimination is obvious), more often the discrimination involves an action or activity that is suspected rather than established and difficult to prove, particularly in the case of indirect or systemic discrimination, and more so when the information and records that might constitute evidence is generally held by the person being accused of discrimination. This is why in some countries the legislation or jurisprudence has sometimes reversed the legal burden of proof or at least introduced some degree of flexibility as regards the burden of proof being on the complainant. The Government of Canada has emphasised (Endnote 193) that the courts and other competent authorities must demonstrate flexibility as regards the admissibility of evidence. It has stated that, as regards human rights cases, it will suffice to show that the balance of the probability is either in favour of the respondent or the complainant; in practical terms, this means that if the respondent is unable to provide a satisfactory answer to the complaint, then discrimination can be reasonably inferred. (Endnote 194) In some countries the person alleging discrimination must first of all demonstrate that inequality of opportunity or treatment coincides with inequality in respect of race, sex, religion, political opinion, trade union activity, etc. Once this has been established, the burden of proof then shifts to the employer to show that he or she had a legitimate reason that was not discriminatory. (Endnote 195) In cases where workers having exercised thir right to file a claim regarding equality of treatment are dismissed or find their conditions of work changed, the legislation in certain countries provides that it is incumbent on the employer to produce evidence that the submission of the claim was not the sole or main reason for the dismissal or the change in the employee's conditions of work. (Endnote 196) The requirement that it is the person charged with having committed a discriminatory act who must produce evidence that the reason for the measure taken is unrelated to the complaint gives extra protection to the person discriminated against and may also have a dissuasive effect.

225. The Committee considers that the question of the burden of proof is of fundamental importance in any allegation of discrimination. A person who has been discriminated against will often hesitate to take his or her case to the competent body, not only from fear of reprisals (Endnote 197) but also because most of the time he or she does not have all the evidence required. Consequently it would be desirable for the body with which the complaint is lodged to be able to play an active role in the procedure, to have powers of investigation in respect of both parties, to seek the opinion of specialised bodies (Endnote 198) and to call on expert evidence in matters of equality. Likewise, it would be desirable for witnesses of discrimination, who often are reluctant to testify for fear of reprisals, to enjoy protection. In an earlier General Survey, the Committee already had the occasion to emphasise, as regards discrimination on anti-union grounds, that the obligation of the employer to prove that there is no union-related motive underlying his or her intention means to dismiss a worker or underlying the dismissal, is an additional means of ensuring real protection of the right to organise. (Endnote 199) As stated above, the Committee also considers that the burden of proof as regards the consequences of past or present illness on a person's aptitude to perform a job should not be on this person. The above considerations show that there are circumstances in which the burden of proof of discriminatory grounds should not be on the person alleging discrimination; in any case, this person should enjoy the benefit of the doubt.

Protection against reprisals

226. In the Chapter concerning the scope of the Convention (Endnote 200) the Committee stated that the effective protection of the principle of equality presupposes the existence of guarantees which provide protection against reprisals to persons who complain to the competent authorities or initiate legal action to enforce their rights. (Endnote 201) Retaliatory measures against a person who has suffered discrimination and who has exercised a right provided for under national policies of equality of opportunity and treatment are especially serious and may have pernicious effects as regards the practical application of anti-discriminatory provisions, since the victims of discrimination often hesitate to have recourse to mechanisms of redress out of fear of reprisals. For this reason the annulment of such provisions and the reinstatement of the person who has suffered discrimination constitute the most suitable remedy. Effective protection against discrimination in employment presupposes recognition of the principle of protection against dismissal: thus, when the legal system provides for equal treatment but allows the employer to terminate the contract of employment without having to state the reasons for such termination, repeated instances of discrimination in the private sector will not be brought before the courts, while public servants, who are better protected against dismissal, will be able to enforce their right to equal treatment.

Remedial action

227. Discrimination causes material and moral harm; although it may be relatively easy, as regards discrimination in remuneration, to repair the damage incurred by means of an adjustment in the level of remuneration, back pay and punitive damages, as evidenced by the pertinent legislation adopted in this connection in a number of countries, (Endnote 202) remedies for discrimination in access to training, employment or occupation, and in conditions of employment do not usually lend themselves to purely financial compensation. (Endnote 203) In its report the Government of the United States emphasised that remedying racial discrimination poses highly complex problems. It stated that, when it can be established that certain persons have been victimised by discrimination, the courts may order that these persons be reinstated in positions they would have occupied had there been no discrimination. The courts may order a variety of measures, including the reinstatement of workers dismissed on racial grounds, the payment of back wages, allowances and promotions of which they had been deprived owing to the employers' discriminatory practices. The courts may also order the employers to cease and desist from such practices. However, in situations where such discrimination is particularly serious or has existed for a long time, these remedies do not suffice. For this reason, the courts have sometimes ordered, or the parties have voluntarily agreed to undertake, affirmative action measures to remedy the effects of past discrimination. Generally, these measures entail programmes which favour the workers of a given minority in comparison with White workers. (Endnote 204) In Sweden, in cases where sex discrimination in employment has been proven (contract, dismissal, etc.), the employer shall pay punitive damages, and in the case of discrimination in recruitment, damages for moral harm. In the United Kingdom, in cases where complaints of racial discrimination in employment are well-founded, the labour court may order the defendant to pay damages and interest. (Endnote 205)

228. The victims of discrimination who take the material and moral risks of instituting judicial proceedings should benefit from suitable remedies which would moreover have a dissuasive effect upon those who would consider engaging in discriminatory practices. In a previous General Survey, (Endnote 206) the Committee noted that as regards measures for compensating a unionised worker for prejudice suffered, the reinstatement of a worker who has been dismissed or discriminated against because of anti-trade union motives, constituted the most appropriate means of redressing acts of anti-trade union discrimination; legislation which includes protective provisions, but which allows the employer in practice to terminate the employment of a worker on the condition of paying the compensation provided for by law in all cases of unjustified dismissal, when the real motive is trade union membership or activity, is inadequate under the terms of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In this connection, an expeditious procedure such as that instituted in Belgium as regards discrimination in training offers obvious advantages. (Endnote 207)

Sanctions

229. Many countries attempt to secure observance of provisions on equality by prescribing penalties for breach of such provisions, either in special legislation or in the wider context of labour legislation in general. (Endnote 208) In some cases, such provisions have been included in the Penal Code following the adoption of legislation on equality. (Endnote 209) They usually concern acts of discrimination in training, access to employment and conditions of work, (Endnote 210) they may be applied to acts of discrimination committed by officials. (Endnote 211) Penalties usually take the form of fines, which are sometimes substantial, (Endnote 212) and in many countries may even include terms of imprisonment. (Endnote 213) In countries where specialised agencies have been set up to implement legislation relating to equal treatment, provision has often been made for the imposition of penalties on persons who refuse to co-operate with the competent authority during investigations of complaints or who fail to comply with the regulations in force. (Endnote 214)

230. In previous General Surveys, (Endnote 215) the Committee referred to sanctions, in particular penal sanctions, to guarantee the application of protective provisions relating to non-discrimination for trade union membership and to equal remuneration. The Committee emphasised, inter alia, that sanctions should have a dual purpose, namely to punish the guilty and, above all, to act as a deterrent against discrimination. In its 1987 report, (Endnote 216) the Committee drew attention in its 1987 general report to the importance of establishing effective sanctions and of adapting monetary penalties in order to ensure that they exert an effective preventive influence against acts contrary to the guarantees laid down by international labour Conventions.

Subsection 5: Educational programmes

231. By providing for the promotion of "such educational programmes as may be calculated to secure the acceptance and observance" of national policy, Article 3(b) of the Convention stresses how important it is that the parties concerned should adhere to this policy. Educational and information programmes are designed to improve awareness of the features of discrimination in order to change attitudes and behaviour patterns and bring about due respect for the right of everyone to equality of opportunity or treatment, irrespective of race, colour, sex, religion, political opinion, national extraction, social origin, etc. All countries which sent information on this issue underscored the importance they attached to action in the field of education and information. They consider it a vital complement to various measures to promote equality in employment and occupational life. However, the Committee regrets the somewhat cursory nature of many reports and the fact that too often they failed to discuss problems in depth. It also regrets that it is only able to provide a limited follow-up to the comments it made in a previous Survey on the content of information and its effects: "First of all it may appear desirable that campaigns to educate public opinion should not be based solely on moral arguments, which are generally the first to be invoked. It would be worth while laying emphasis on other considerations, such as the economic factor; when thorough studies have been made of the costs of discrimination, at both macro-economic and micro-economic levels, people will probably be easier to persuade if they also realise where their interests lie. Furthermore, it is not enough to eliminate negative attitudes but appears desirable to try, as has been done in certain countries, to encourage positive attitudes by doing more to promote the idea of equal opportunity from its theoretical and practical aspects." (Endnote 217)

232. Educational action, carried out by methods adapted to national circumstances and practices, may take various forms. Many countries referred to the inclusion of courses on various issues such as racial discrimination in school curricula. (Endnote 218) Few details were given on the level of this instruction, its content and the training of teachers entrusted with giving it. In several countries, bodies set up to promote, apply and supervise policy take part in school or university activities by holding conferences from time to time or, on a more regular basis, by participating in the drawing up of programmes and courses or even in the training of instructors. In Canada, the Human Rights Commission has developed a module on employment equity to outline the roles of various organisations in implementing equality in the workplace. Various provinces have taken similar steps in education. (Endnote 219)

233. In several countries, research programmes are being carried out on matters affecting progress towards equality of opportunity which advise the parties concerned (employers, trade unionists, education authorities and others) on how to work towards equality. In Belgium, the Government mentioned that some of these research projects are carried out in the universities. (Endnote 220) In the Caribbean, the project "Women in the Caribbean" is a vast research programme undertaken by the Institute of Economic and Social Research of the University of the West Indies (Barbados, Jamaica and Trinidad and Tobago). This programme is intended to extend empirical knowledge and give a better grasp of the daily life of women in the Caribbean as well as to contribute towards identifying policies and programmes that might deal with and alleviate several problems encountered by women. (Endnote 221) As a result of this project, recommendations drawn up for governments and non-governmental organisations on legislation, education, family policy, employment and agricultural policy have been submitted to the parties concerned. In its report, the Government of the United Kingdom points that that the Equal Opportunities Commission may award grants to voluntary organisations and individuals to carry out research projects on matters dealing with equality.

234. The general public may also be informed through the mass media, by means of regular broadcasts or special programmes, (Endnote 222) or even by the distribution of posters. (Endnote 223) In Australia the Committees set up to combat discrimination launched in 1983-84 an equal employment opportunity campaign to inform further groups experiencing discrimination about the Committees' role and to promote equal employment opportunity personnel practices amongst employers, employees and trade unions. (Endnote 224) Furthermore, the Government of one of the states in the same country pointed out that the issue of public education was highlighted during the deliberations on the Equal Opportunity Bill; of the six major functions of the Commissioner outlined in the Bill, four specifically relate to disseminating information, consulting with various groups and developing programmes and policies designed to eliminate discriminatory attitudes in the community. (Endnote 225) A community education officer in the Office of the Commissioner carries out various activities including: development of a community education strategy and programme; publication of a newsletter; development of an extensive mailing list for publications; media liaison for the Commissioner and speech writing and public speaking. The Government of India points out that as the press in this country enjoys total freedom of opinion and expression, it is able to contribute in a positive way towards promoting understanding, tolerance and friendship between the various racial groups. Guidelines have been drawn up by the Ministry of Information and Broadcasting on the role of state media in the dissemination of information to combat racial prejudice. According to these guide-lines: "(i) vigorous steps should be taken by the official units to serve the rural population, minority communities, women, children, illiterate as well as other weaker and vulnerable sections of the society; (ii) each media unit should try to encourage both individual and collective efforts by the handicapped (...) as well as institutions serving this section of society (...); (iii) the media units should devise suitable programmes to eradicate social evils such as untouchability, narrow parochial attitudes and loyalties and inequalities and exploitation". As a result of these guide-lines drawn up by the Government, the various services under the Ministry of Information and Broadcasting has produced or broadcast a considerable number of programmes during the past few years. (Endnote 226) In Iceland, a project is being undertaken in co-operation with the Nordic Council aimed at developing and testing methods for breaking down the male-female division of the labour market. Great emphasis has been laid on providing publicity for the project in order to promote debate on the position of women in the labour market. This publicity, designed to bring about a change of attitude towards greater equality between the sexes, is directed both at the general public through the media and at particular groups such as students, teachers, parents, employers and employees. In the Netherlands, an information campaign making use of a new folder, press advertisements, television spots and leaflets on equal treatment of men and women has resulted in a conspicuous increase in the number of applications for advice submitted to the Committee on Equal Treatment for Men and Women at Work. (Endnote 227) In Sweden, activities of the Equal Opportunities Ombud/Ombudsman have included the production of a video cassette dealing with the requirements of the Equal Opportunities Act for active promotion of equality between the sexes. This video cassette has mainly been addressed to employers and was re-transmitted in a television programme. The Government of Tunisia has pointed out that national women's and vocational organisations participate in the process of informing and educating the public with regard to the national policy against discrimination. (Endnote 228)

235. Much information was provided on publication programmes. Some publications are aimed at a very wide public, (Endnote 229) others are more specialised and deal with certain aspects on the ways to combat discrimination. (Endnote 230) They are often of a practical nature. In Venezuela, the Ministry for the Participation of Women in Development has published a practical guide; alongside various basic information on women's legal and social status, it contains a digest of legislation and regulations on women's rights in various fields (work, civil status, taxation, pensions, social security, legal assistance), information on mother-and-child welfare, health protection, consumer protection, social protection and ways to apply these rights. This practical information is supplemented by a list of addresses. (Endnote 231) Several bodies entrusted with promoting, applying and supervising equality of opportunity have a programme of publications which includes reprints of documents, guides, bulletins, activity reports, and summary reports of seminars, research work (Endnote 232) or basic statistical data. (Endnote 233) Most of these publications are sent free of charge to those who make the request or to the organisations concerned. In Sweden, the information journal "Jämsides" ("Side-by-side") has a circulation of 17,000 (for a working population of 4,385,000) and is mainly distributed to union officials, employers' representatives, and equal opportunities and personnel officers at various workplaces. Although little information was sent on the criteria applied for distributing these various publications, the Committee feels that a certain selection has been made to determine those persons most likely to be interested by them; those who might, through their work, pass the information on to a wider public (teachers, journalists, etc.). At the present juncture, when programmes without a purely economic aim are often being suppressed on austerity grounds, these publication programmes should be better defined in relation to the audience addressed. In some countries, texts to facilitate the application of legislation on equality of opportunity and treatment within the enterprise are published by specialised bodies or by governmental services and distributed to both employers and workers. In Ireland, the Ministry of Labour publishes a series of brochures on employment equality which gives a broad outline of the legislation in force; these are intended for heads of enterprises, especially those of small and medium-sized enterprises, heads of personnel, trade unionists, workers or "simply interested citizens". (Endnote 234) In New Zealand, the New Zealand Employers' Federation published a positive action manual in 1985 for its members. Another manual entitled "Employing people with disabilities" has recently been published by the Federation, with the Government's approval. In the same country, practical pamphlets on specific aspects of discrimination in employment, such as sexual harassment, which are drawn up either for the complainants or supervisors, are published by the Equal Employment Opportunities Unit of the State Services Commission.

236. Some governments pointed out that the role of trade unions within the enterprise was not only to defend workers' interests, but also to inform them and make them more aware of matters pertaining to equality of opportunity and non-discrimination at work. (Endnote 235) However, there was little information as to the way in which the trade unions within the enterprise actually fulfilled this responsibility. In Argentina, the Commission for the Family and Minorities of the Senate of the Nation organised a seminar on equality of opportunity in employment for women members of the trade unions. (Endnote 236) In Burkina Faso, executive staff from the Ministry of Labour give lectures intended to make workers more aware of the strict respect of principles of non-discrimination during seminars organised by employers' and workers' organisations. In Canada, seminars were organised by the Federal Department of Labour for employers' and workers' organisations (Women's Bureau, Seminar on Equal Pay for Work of Equal Value, February 1986), for union representatives as part of Labour Canada's Education Programme (Equal pay: Collective Bargaining and the Law, February 1987); others were organised by the Federal Canadian Human Rights Commission (Seminar on new Equal Wages Guide-Lines, February 1987) which brought together employers, workers, members of groups concerned and universities. In Cyprus, workshops and seminars are organised by the Government, women's organisations and trade union organisations, during which issues falling within the scope of the Convention are discussed. In India, the Central Board for Worker's Education and the National Labour Institute organise training programmes to make workers more aware of their rights, especially as regards the Equal Remuneration Act, 1976. The Government also points out that the voluntary organisations of scheduled tribes and castes also play a vital role by informing their members of their constitutional rights. The Government of Suriname mentioned that workers' education, which is dispensed by the Suriname Labour College and sponsored by the social partners, also contributes towards the education of those concerned. Several governments stressed the importance they attached to training officials entrusted with applying the principle of equality. (Endnote 237) In New Zealand, seminars are organised for officials belonging to ethnic minorities (Samoans, evidence from Pacific islanders); following one of these seminars, the report of the State Services Commission provided government departments with guidance on issues affecting the employment conditions of members of ethnic minorities.

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Legislation

See related national legislation from Natlex

Australia: Affirmative Action Act of 1986

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C081 Labour Inspection Convention, 1947
Conventions: C098 Right to Organise and Collective Bargaining Convention, 1949
Conventions: C129 Labour Inspection (Agriculture) Convention, 1969