Conclusions

Basic importance of the Convention

237. It would be difficult to overestimate the importance of the Convention which is the subject of this Report. Thirty years after its adoption by the Conference in 1958, Convention No. 111 is one of the five ILO instruments that have received the highest number of ratifications. Since the previous General Survey in 1971, 34 countries with various economic, political and social systems, in all the regions of the world, (Endnote 1) have ratified the Convention, bringing the total number of ratifications to 108. This high number of ratifications is a clear reflection of the general level of acceptance of the principle of equality of opportunity and treatment in employment and occupation. Unfortunately, nearly one-third of the member States of the ILO have not yet ratified the Convention. An important decision of the Governing Body (Endnote 2) invited the governments of countries that have not yet ratified Convention No. 111, starting in 1980 and at regular four-year intervals, to submit reports under article 19 of the Constitution specifically regarding the difficulties in ratification, the measures envisaged to overcome these difficulties, and the prospects for ratification. This regular examination of the situation in countries that have not ratified the Convention should contribute to promoting its ratification. Indeed since this procedure was introduced, 11 ratifications have been registered.

238. The underlying principles of the Convention are universal, but it was essential to ensure that the Convention itself was flexible enough to be applied in countries with a great diversity of economic and social conditions. When the Convention was adopted, emphasis was placed on defining the objectives to be achieved by declaring and pursuing a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation. The actual measures employed could be varied according to national conditions and practice, but the national policy should be based on the principles set forth in the Convention: it should cover all the grounds of discrimination referred to by the Convention (Chapter I, Section 3), promote equality of opportunity in employment and occupation with a view to eliminating all types of discrimination in law and in practice (Chapter IV) and achieve the principle of equality in all fields of occupation and employment (Chapter II).

The indivisibility of equality

239. Equality in employment cannot be fully achieved within a general context of inequality. Inequality in social status inevitably results in inequality of treatment and above all in inequality of opportunity in employment. The most salient example is that of apartheid, which is described as a crime against humanity by the International Convention on the Suppression and Punishment of the Crime of Apartheid. The policy of separate development presupposes that different racial groups are incapable of developing in the same manner and at the same pace, which is the contrary of what has been proved for the rest of humanity, and leads to an individual's opportunities being restricted, because his or her position in society is determined by race. Policies that lead to separate development on the basis of personal characteristics other than race and colour, and that are also covered by Article 2 of the Universal Declaration of Human Rights, result in discrimination which directly affects employment and occupation, or which has repercussions for them. The repudiation of any policy that introduces unequal status on the basis of distinctions or preferences between groups of the population or individuals, based only on their belonging to a group, is a fundamental objective under the Declaration of Philadelphia, enabling the programmes of action and measures taken nationally and internationally to be understood and accepted.

The need for continuous action

240. With regard to the implementation of the measures provided for in the Convention and Recommendation, the Committee emphasises once again the importance that it attaches to vigilance to ensure continuing action is taken in those areas where the national policy on equality of opportunity and treatment in employment or occupation is to be pursued. It is apparent that there will always be room for improvement. For that reason it is difficult to accept statements to the effect that the application of the Convention gives rise to no difficulties or that the instrument is fully applied, especially when no other details are given on the contents and methods of implementing the national policy. The promotion of equality of opportunity and treatment does not aim at a stable situation that may be attained once and for all, but rather requires a permanent process so that policy may be adjusted to changes in society in order to eliminate the various forms of distinctions, exclusions and preferences based on grounds laid down in the 1958 instruments. The absence of a policy of this nature, far from signifying a lack of discrimination, would tend to imply the existence of discrimination. The observation made by the Committee in its General Survey of 1986 on equal remuneration applies equally to the present instruments: once rigorous action gets under way and new measures are adopted to implement the principle of equality of opportunity and treatment, the existence of problems will in practice be brought to the surface, thus requiring further progress.

241. The application of the principle set forth in the Convention therefore is best achieved in successive stages, each stage giving rise to the discovery of new problems leading to the adoption of new remedies. Furthermore, it appears that many of the difficulties encountered in implementing the principle of equality of opportunity and treatment are intimately bound up with the status of men and women in employment and society generally. The right to equal access to training, employment and occupation cannot be attained in a general context of inequality. The solutions that are to be applied to matters of equality in employment and occupation form part of a more wide-ranging series of measures for the progressive building of a discrimination-free society. To this end the Committee points out that the authorities responsible for combating discrimination in respect of employment and occupation should work in close co-operation with the authorities responsible for combating discrimination in other fields, in order to co-ordinate all the measures taken.

Stages in the implementation of the Convention

242. The inclusion of the principle of equal opportunity and treatment in national legislation is an important stage in its implementation. The Committee has noted, with regard to discrimination on the basis of religion, (Endnote 3) that the abundance of provisions in constitutions, laws and collective agreements should not obscure the difficulties that can arise from their application. These provisions need to have a practical impact in order to promote real equality of opportunity and treatment in respect of employment and occupation. However, the scope and influence of these overall measures is not insignificant. Constitutional guarantees can establish rights enforceable in the courts by those concerned. They can also determine the general guide-lines that establish the scope of the national policy and influence attitudes by setting out rules for social behaviour. But it is important, if this has not already been done, that the guarantees should be applied through provisions which are enforceable and through practical measures.

243. Supplementary measures may be necessary too to give practical application to laws laying down general principles. Subordinate laws and especially collective agreements often prescribe the conditions in which equality of opportunity and treatment may be furthered. Access to appeal and the existence of an institutional framework designed to guarantee equality of opportunity and treatment have great practical importance. The interdependence of standards and practical provisions in this field should be borne in mind. These two methods of action, the relative importance of which depends on national customs and conditions, reinforce each other and are therefore inseparable, as illustrated by most of the information available on the application of the 1958 instruments. Action is, however, often still needed in order to cover all the grounds of discrimination set forth in Article 1, paragraph 1(a), of the Convention. In particular, in cases where national practice requires the adoption of constitutional or legislative provisions in order to give statutory effect to equality of opportunity and treatment, all the grounds set forth in the Convention should be explicitly included in these provisions.

Requirement to eliminate discrimination from law and administrative practice

244. The Convention and Recommendation provide for the primary obligation to eliminate any discriminatory measure in respect of employment and occupation from law and administrative practice. A number of the situations referred to in this General Survey demonstrate that this obligation is not yet fully observed in all countries, although the Committee has been able to note with satisfaction that in many cases progress has been achieved since the last General Survey. In certain countries, and particularly under the impetus of specialised bodies set up to supervise the application of the policy of equality, the legislative provisions and regulations in force have been examined or are being examined, so that amendments can be submitted to the competent bodies in order to eliminate discriminatory clauses.

245. The same applies to administrative practices which often interpret general provisions and therefore take on considerable importance in the everyday application of the principle of equality. In the public sector assessments of administrative methods which take due account of equality of opportunity and treatment have resulted in some countries in the adoption of directives that are free from discrimination. It would be desirable for such assessments to be made, taking into account the equality dimension, for practices respecting access to employment, occupation, training and conditions of employment, for example in programmes to streamline the public service. Representation of all the groups in a society plainly contributes to increasing the effectiveness of public services. The application of policies of equality of opportunity and treatment in jobs under the direct control of a national authority is particularly important.

246. The Committee points out in particular the effect that the full application of the national policy of equality of opportunity and treatment in jobs under the control of a national authority can have as a model for other sectors of activity and in establishing the general context of equality referred to above. It is against this yardstick that the resolve to implement the national policy of equality, which all States having ratified the Convention must declare and pursue under its Article 2, can be measured. The Committee wishes to draw attention to the importance of the strict observance of this obligation. The concern expressed by several countries to reduce certain expenditures, particularly public expenditures, should not call into question programmes for providing equal access to jobs under the control of a national authority.

Danger of persisting de facto discrimination

247. In general, the most widespread kinds of inequality in respect of employment and occupation do not necessarily stem from legislation, but from de facto situations and relations between individuals. Occupational segregation based on sex or race is very widespread. Since this is less easy to identify than deliberate acts of discrimination, it is only clearly revealed by statistical analyses of the distribution of labour in the national economy, branch of activity or enterprise. The tools employed to demonstrate these divisions in the labour market need to describe this situation as exactly as possible and policies may be required to re-establish the equilibrium between the sexes and between the various groups in the population. The Fourteenth International Conference of Labour Statisticians (Geneva, 28 October-6 November 1987) attached considerable importance to the adoption of an international standard classification which takes correct account of the role of women's labour. One of the principal advantages of this is that it would enable the increasing number and variety of occupations exercised by women to be monitored. It would be desirable for national classifications relating to national circumstances and customs to specify in detail the particular areas of occupational groups in which women and members of underprivileged groups predominate. By doing so, it might be possible to avoid the risk of undervaluing the special skills, training and experience required in so-called "women's" occupations and occupations in which members of underprivileged groups are employed. Improvement in the means available for compiling information on direct and indirect forms of discrimination based for example on race, colour or sex is indispensable if progress is to be made in the elimination of discrimination and the promotion of equality of opportunity and treatment.

248. The subject is a delicate one, since this type of information could serve as a basis for other forms of discrimination, particularly those relating to personal characteristics that are not immediately apparent, such as religion, political opinion and social origin. One of the means of preventing discrimination based on personal characteristics that do not form part of the inherent requirements of a particular job may be to restrict the information that may be requested and kept by the enterprise or administrative department to what is relevant to the requirements of the job, in line with the practice in some countries. Another method might be to give the persons concerned control over the content of their personnel files so that information that might give rise to discrimination could be removed. Whatever solution is adopted, it is difficult but important to reconcile the need for detailed information, so that the best methods of remedying discrimination can be determined, with the need to protect individuals against discrimination based on the grounds set forth in the Convention.

Role of employers' and workers' organisations: National laws and collective bargaining

249. The Committee has noted that there is little information available as to the role played by employers' and workers' organisations in the application of the principle set forth in the Convention. The extent of the problem of equality of opportunity and treatment has led many governments to set up specialised bodies in which employers and workers are not always represented. In the years to come, one of the problems to be solved will be that of reconciling and harmonising two systems of standards that are still far apart: first, labour legislation and the standards arrived at through collective bargaining between employers and workers; and second, general anti-discrimination laws applied by specialised bodies and the courts. In a number of countries, emphasis is laid on collective action to eliminate discrimination and promote equality of opportunity and treatment in employment. The right to equality has to be integrated into labour legislation so that the objective can be pursued within the framework of the existing industrial relations system.

250. The objective of equality must also be pursued through the well-tried, homogeneous framework in which matters regarding equality are the subject of negotiations alongside other matters relating to working conditions. A large proportion of what are considered to be affirmative action programmes, arrived at after proof of systemic discrimination has been established, have been the subject of negotiation in these kinds of systems. The right to equality is often defined only in terms of one of the grounds of discrimination set forth in the Convention. In other countries, the methods of applying the general anti-discrimination laws (which body is competent, how the complaints machinery works, what the standards of proof are, and what the remedies are) fall outside the working environment and often involve no participation by the social partners. These laws in general cover several grounds of discrimination and extend far beyond the field of labour, covering not only occupation, education and training, but also discrimination in housing or in the provision of services which are not covered directly by the Convention. Under such systems remedial measures may be taken to rectify cases of past discrimination by granting a defined temporary advantage to members of the groups discriminated against. Many countries fall somewhere between these two models and have adopted measures of both kinds. The task of employers' and workers' organisations regarding the promotion of equality of opportunity and treatment depends on the system, although in both kinds they contribute invaluable practical knowledge of working conditions whether as direct actors or as partners. Co-operation with employers' and workers' organisations must be pursued and intensified through such measures as providing machinery for involving specialised bodies in implementing the principle of equality in enterprises. Similarly, what often seems a marginal role given to the labour inspection services in this field should be reconsidered in the light of international labour Conventions on that subject.

Difficulties to be overcome

251. Where there is no active employment policy that secures full and freely chosen employment, equality of opportunity and treatment is a hollow expression. The persistence of high unemployment rates and the tendency for longer periods of time to be needed to find employment strengthen old inequalities and create new ones. The exclusion from society which results particularly from a long period of unemployment and its consequences (for the individual, loss of occupational skills and loss of contact with the working environment, for the country as a whole, deterioration of the social fabric) is a powerful factor in discrimination and especially affects persons who may be subject to discrimination on grounds such as social origin, sex, age or belonging to an ethnic minority. Several countries have adopted measures in order to resolve issues of exclusion from society which go beyond the scope of the Convention and thus respond to the need for a general policy of equality. The Committee, however, notes with concern the tendency in some countries to abandon or drastically reduce programmes intended to remedy inequalities in order to decrease public expenditure in the name of economic efficiency.

252. These programmes must be viewed in a broader perspective, since the exclusion of part of the active population is costly. The difficulty in perceiving the cost involved in discrimination doubtless lies in the fact that the savings made through cutting down on affirmative measures are immediately apparent, while the costs involved in the consequences of discrimination are more diffuse and spread over a long period, and affect many sectors. Clearly the policy of equality should be declared and applied in a broad overall framework and its economic consequences should be examined. While considerations of an economic nature must not lead to the adoption of a discriminatory policy, which would be contrary to principles of dignity and freedom, care should be taken not to lose sight of the economic aspects of a policy of equality of opportunity and non-discriminatory treatment, one of whose effects would be to enable the entire active population to have access to employment or an occupation.

253. The elimination of discrimination between ethnic groups in employment and occupation is of fundamental importance, all the more so because of the re-emergence of signs of intolerance and racism in some countries. Emphasis must be laid in the first place on protection against actions which are openly discriminatory (generally through legislative provisions prohibiting discriminatory behaviour and action); it must then move towards practical and economic measures necessary to tackle the problems encountered by certain groups. Emphasis must be placed on economic integration of the members of these groups in employment and occupation so as to enable them to occupy a position in society that is free from discrimination. The Committee considers that nothing short of bold and systematic measures, which imply making effective efforts to rally public opinion, must be given high priority in national policies on equal opportunity and treatment. In this field, failure to act will only result in a worsening of indirect discrimination and its consequences, with the woes that it entails.

Endnotes

Endnote 2

Endnote 3

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35