Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Workers with Family Responsibilities Convention, 1981 (No. 156) - Azerbaijan (Ratification: 2010)

Article 1 of the Convention. Definitions. The Committee notes the Government’s indication that a Bill amending the Labour Code has been drafted, and that the Bill adds a paragraph and an explanatory note to section 3 of the Labour Code, thereby defining “workers with family responsibilities” and the scope of “member of the immediate family” under the Convention. The Committee asks the Government to provide information on the status of the draft amendments, and to forward a copy of the amendments once they are adopted.

Article 2. Application to all categories of workers. The Committee notes that pursuant to sections 4 and 5 of the Labour Code, the measures taken under the Labour Code apply to all business activities both in the private and public sectors. It also notes that section 6 of the Labour Code excludes certain categories of workers from its application. The Committee asks the Government to indicate any measures taken or envisaged to apply measures concerning workers with family responsibilities under the national legislation to all categories of workers, in line with Article 2 of the Convention.

Article 3. National policy. The Committee notes that section 12(1) of the Labour Code obliges employers to establish equal opportunities for all workers, irrespective of sex, in employment, dismissal, advanced training, mastering the new speciality and professional development, and performance assessment. The Committee also notes that under section 7 of Act No. 150-IIIQ of 10 October 2006 on Gender Equality (Act on Gender Equality), employers shall provide equal treatment and equal opportunities for men and women in the process of recruitment, promotion, raising the level of skills, retraining, assessment and dismissal. It further notes the Government’s indication that the draft Bill amending the Labour Code adds “family responsibilities” to the prohibited grounds of discrimination under section 16(1) of the Labour Code. The Committee asks the Government to provide information on the legal and practical measures taken to enable persons with family responsibilities to engage in employment without being discriminated against and to do so without conflict between their employment and family responsibilities, including the practical application of the relevant sections of the Labour Code and the Act on Gender Equality with respect to promoting a sharing of family responsibilities between men and women. Please provide information on the status of the draft amendments, and forward a copy of the amendments once they are adopted.

Article 4. Right to free choice of employment. The Committee notes that section 98(1) of the Labour Code provides for the prohibition of night work, including for women with children under three years of age. It also notes that section 242(1) of the Labour Code prohibits night work, overtime work, work on weekends or holidays, or business trips for women with children under three years of age, and that by virtue of section 246 of the Labour Code, the prohibition applies to single fathers, foster parents, or legal guardians who have to independently raise the children due to a particular reason (if the mother of the children has died, or has been deprived of her motherhood rights, or has to be away for therapy in medical institutions, or has to spend time in detention facilities). The Committee further notes that pursuant to section 91(2) of the Labour Code, the working hours for women with a child under one-and-a-half years of age is limited up to 36 hours per week. The Committee asks the Government to indicate how it is ensured that the prohibition of night work, overtime work, work on weekends or holidays, or business trips for women with children under three years of age and for single fathers, foster parents of legal guardians under specified conditions pursuant to sections 98(1), 242(1) and 246 of the Labour Code and limiting the working hours of women with children under one-and-a-half years of age pursuant to section 91(2) of the Labour Code do not adversely affect the labour force participation of men and women workers with family responsibilities. Please indicate whether consideration is being given to allowing men and women with family responsibilities, on an equal footing, to have access to such work with their consent.

Entitlements for men and women workers with family responsibilities. The Committee notes the sections of the Labour Code relating to the right to leave during the first year of employment for pregnant women and new mothers, as an exception to the principle of exercising the right to leave only six months after the commencement of employment (section 131(1) and (4)). The Committee also notes the sections of the Labour Code relating to: (i) the prohibition of a probationary period for pregnant women, women with a child under three years of age, and single fathers with a child under three years of age (section 52(1)); (ii) the prohibition of termination of employment for pregnant women, women with a child under three years of age, fathers independently raising a child under three years of age, and employees whose only income source is the enterprise where they work and with a child under school age (section 79(1)); (iii) the right to additional leave for women with two children under 14 years of age (two days in a calendar year), and for women with three or more children of this age or with a child with restricted health condition (five days in a calendar year) (section 117(1)), and by virtue of section 117(2), this also applies to fathers independently raising a child, or foster parents; and (iv) the prohibition of refusing entry into a labour contract with women with a child under three years of age, except in cases “when employers do not have an appropriate work (position)” or when the prohibition of certain kinds of work for women applies (section 240(1)); (v) requiring written consent of women with a child between the ages of three and 14 years or a child with restricted health conditions for night work, overtime work, work on weekends or holidays, or business trips (section 242(2)); and (vi) upon a worker’s request, the employer has to provide an option of part-time daily or weekly work with pay which is based on their experience and seniority, for pregnant women or women with a child under 14 years of age, or with a child with restricted health conditions or with a sick family member based on a medical certificate (section 245(1)). By virtue of section 246 of the Labour Code, sections 240(1), 242(2), and 245(1) also apply to single fathers, foster parents or legal guardians, however, only under conditions that they have to independently raise the children due to a particular reason (if mother of the children has died, or has been deprived of her motherhood rights, or has to be away for therapy in medical institutions, or has to spend time in detention facilities). The Committee draws the Government’s attention to the fact that when legislation reflects the assumption that the main responsibility for family care lies with women or excludes men from certain rights and benefits, it reinforces and prolongs stereotypes regarding the roles of women and men in the family and in society. In order to achieve the objective of the Convention, measures to assist workers with family responsibilities should be available to men and women on an equal footing (General Survey on fundamental Conventions, 2012, paragraph 786). The Committee therefore considers that the measures taken in favour of workers with family responsibilities must be made available to men and women equally. The Committee asks the Government to indicate any measures taken or envisaged to ensure that the entitlements under the Labour Code are available to men and women with family responsibilities on an equal footing.

Other leave entitlements. The Committee notes that under the Labour Code, partially paid social leave is granted to a single parent or another family who is directly caring for children under three years of age (section 127(1)); unpaid leave is granted at a worker’s request on the basis of the opinion of a medical board, to one of the parents of a chronically ill child or another family member directly engaged in childcare, until the child reaches the age of four (section 130(a)); up to 14 days in a calendar year for men whose wives are on maternity leave (section 130(b)); up to 14 days in a calendar year for women with children under the age of 16 or single parents or guardians (section 130(c)); up to 14 days in a calendar year for parents raising children suffering from acquired immune deficiency syndrome (AIDS) or infected with the human immune deficiency virus (HIV) and for parents with children with restricted health conditions up to 18 years old (section 130(g)); up to 14 days in a calendar year for the period stated in a medical opinion for one relative caring for a sick family member (section 130(k)); up to 14 days in a calendar year for employees with disabled children under the age of 18 (section 130(l)); and up to seven days for the workers to solve family, household and other social issues (section 130(m)). The Committee asks the Government to provide statistical information, disaggregated by sex, on the extent to which men and women workers make use of the leave entitlements under section 130 of the Labour Code, with a view to enabling workers to reconcile work and family responsibilities. Please also provide information on any other measures taken to take account of the needs of workers with family responsibilities in the public and private sectors with respect to conditions of work and social security.

Article 5. Childcare and family services and facilities. The Committee asks the Government to provide information on the following: (i) the extent of childcare, family services available for men and women workers with family responsibilities; (ii) the number of workers with family responsibilities making use of the existing childcare and family services and facilities; and (iii) the number and age of children requiring care.

Article 6. Education for the public. The Committee asks the Government to provide information on measures taken or envisaged to promote information and education which engender broader public understanding of the principle of equality of opportunity and treatment between men and women, and of the problems encountered by persons with family responsibilities who are employed or who want to become employed and on the impact of these activities on public opinion.

Article 7. Integration in the labour force. Recalling the importance of improving the employment possibilities and job security of workers with family responsibilities through strengthening their occupational qualifications, the Committee asks the Government to provide information on any practical and legal measures taken or envisaged to take into account the specific needs of male and female workers with family responsibilities in order to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to family responsibilities.

Article 8. Protection against dismissal on the ground of family responsibilities. The Committee notes that section 79(1) of the Labour Code provides that “the employer shall be prohibited from terminating the employment contracts” of “pregnant woman and women with a child under three years of age, fathers independently raising a child under three years of age” and workers “whose sole income source is the enterprise where they work and who are raising a child under school age”. While welcoming the provision concerning the protection against dismissal for workers with family responsibilities, the Committee asks the Government to indicate if any consideration is being given to providing protection against dismissal for men and women workers with family responsibilities on an equal footing.

Article 11. Workers’ and employers’ organizations. The Committee asks the Government to provide information on the specific measures taken to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, and to provide information on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures.

Parts III–V of the report form. Practical application. The Committee notes the Government’s indication that the state labour inspectorate is in charge of the application of the Convention, with the possibility of prosecution for the violation of the laws pursuant to section 313 of the Labour Code. It also notes the Government’s indication that no court decisions have been handed down so far concerning the application of the Convention. The Committee asks the Government to provide information on the supervisory authorities and enforcement mechanisms, including the labour inspectorate, in giving effect to the provisions of the Convention, as well as any administrative or judicial decisions relating to the application of the Convention. The Committee also asks the Government to provide information, including statistical data disaggregated by sex, studies, surveys or reports that may enable the Committee to assess how the principles of the Convention are applied in practice, and how progress is being made to address existing inequalities between men and women workers with family responsibilities and between these workers and workers without such responsibilities.