Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Romania (Ratification: 1973)

Articles 1 and 4 of the Convention. Discrimination based on political opinion. Inherent requirements of the job. Activities prejudicial to the security of the State. For a number of years, the Committee has been drawing the Government’s attention to the fact that the restriction set by former section 50 (now section 54(j)) of Act No. 188/1999 on civil servants could amount to discrimination on the basis of political opinion. In this respect, the Committee pointed out that section 54(j) of Act No. 188/1999 applies broadly to the entire public service rather than to specific jobs, functions or tasks. The Committee notes the Government’s explanations regarding the decision of the Constitutional Court and that the case is currently pending before the European Court of Human Rights (Naidin v. Romania, No. 38162/07). The Government indicates that in order to clarify the legal norm and remove any possible inconsistency with the Convention, it has proposed an amendment to the current text of section 54(j) of Act No. 188/1999 as follows: “was not a worker of the Securitate or a collaborator thereof, as provided by specific legislation”. According to the Government, “specific legislation” refers to section 2 of Ordinance No. 24/2008 which defines an “employee of Securitate” and a “collaborator of Securitate”. In this context, while understanding the Government’s concerns regarding the requirement for all government unit members to be loyal to the State, the Committee would like to recall that for measures not to be deemed discriminatory under Article 4 of the Convention relating to activities prejudicial to the security of the State, they must affect an individual on account of activities he or she is justifiably suspected or proven to have undertaken. These measures become discriminatory when taken simply by reason of membership of a particular group or community. They have to refer to activities qualifiable as prejudicial to the security of the State and the individual concerned shall have the right to appeal to a competent body in accordance with national practice (see General Survey on the fundamental Conventions, 2012, paragraphs 832–835). The Committee recalls that this exception should be interpreted strictly. Recalling that political opinion may be taken into account as an inherent requirement, under Article 1(2) of the Convention, only for certain posts involving special responsibilities directly concerned with developing government policy, the Committee requests the Government to provide information on the measures taken to clearly specify and define the functions in respect of which section 54 (j) of Act No. 188/199 would apply. Bearing in mind the conditions in which Article 4 of the Convention can be invoked, the Committee requests the Government to provide information on the application of section 54(j) of Act No. 188/1999 in practice, including any available data on the number of candidates for a civil servant position whose application has been rejected on the basis of these provisions, indicating the reasons for this rejection, and the functions concerned, as well as information on the appeal procedure available to the affected persons and any appeals lodged.

Article 2. National policy of equality. The Committee notes that Government Ordinance No. 137/200 on Preventing and Punishing all Forms of Discrimination was amended by Emergency Ordinance No. 19/2013 approved by Law No. 189/2013 of 26 June 2013, and by Law No. 61/2013 of 21 March 2013, with respect to, inter alia, genuine occupational requirements, the sharing of burden of proof and the increase of fines. The Committee notes from the Government’s report the wide range of preventive measures taken by the National Council for Combating Discrimination (CNCD) in the field of education, employment and occupation within the framework of its National Strategy to Implement Measures to Prevent and Combat Discrimination (2007–13), such as awareness raising campaigns, roundtables and training on non-discrimination and equality. The Committee also notes the detailed information provided by the Government on the promotion of ethics and equal opportunities and treatment in the civil service, including through guidelines, the Code of Conduct for civil servants, recruitment procedures and a policy proposal entitled “Development of ethical standards in the system of public administration” developed by the National Agency of Civil Servants (NACS). The Committee further notes that the Government has submitted to the Ministry of Regional Development and Public Administration, a draft law amending and supplementing Law No. 7/2004 on the Code of Conduct which contains provisions “completing definitions associated to terminology used in the text of normative measures” such as “discrimination, harassment, sexual harassment, sex-based discrimination, ethical dilemma”. The Committee requests the Government to continue to provide information on the legislative and practical measures taken at the national and local levels, including measures to combat stereotypes and prejudice and promote mutual tolerance, as well as on the activities carried out by the CNCD to promote equality and eliminate discrimination on the basis of any of the grounds enumerated by the Convention and by the national legislation. The Committee hopes that the draft Law amending and supplementing Law No. 7/2004 will contain comprehensive definitions of discrimination and sexual harassment, including both quid pro quo and hostile environment harassment, and requests the Government to provide a copy of the law once adopted. Please continue to provide information on the measures taken to promote equality in the public service.

Equality of opportunity and treatment between men and women. The Committee notes from the statistics provided by the Government for 2012, the high proportion of women in the civil service whereas their participation in the private sector remains low (39 per cent in fully private entities and 28 per cent in entities with a majority private ownership). The Committee notes the Government’s indication that it is taking active measures to promote the employment of women, including specific measures for women belonging to vulnerable groups (graduates, young women at risk of social exclusion, women with disabilities, women over 45, Roma women, etc.). The Government also indicates that increasing the participation of women in the labour market, including through support measures to reconcile work and family, promote entrepreneurship and the “Second Chance” programme to acquire skills required by the labour market, as well as job scholarships for women and measures to combat occupational gender stereotypes, is one of the goals set by the National Strategy for Boosting Employment 2014–20 (NSBE). The Committee requests the Government to provide information on the concrete measures taken to increase the participation of women in the labour market, including measures to address occupational gender segregation and combat gender stereotypes, and the measures taken to reconcile work and family responsibilities for both men and women workers, under the NSBE as well as any assessment made and results achieved. The Committee requests the Government to provide information on the activities carried out, in the field of training and employment, by the National Committee on Equal Opportunities for Women and Men and the Department for Equal Opportunities between men and Women created in 2014 within the Ministry of Labour. Please provide full statistics on the employment of women and men in the private and public sector, disaggregated by occupational category and job level. The Committee reiterates its request for information with respect to the review of the clauses addressing work and family issues in collective agreements that provide certain entitlements and arrangements only to mothers.

Equality of opportunity and treatment of the Roma. Access to education, training and employment. The Committee notes the persistent disparities in education and employment levels between Roma and non-Roma persons. The Committee notes that, according to the European Commission against Racism and Intolerance (ECRI), “notwithstanding steps taken by the authorities towards combatting school segregation and discrimination towards Roma pupils, these two phenomena remain a serious reason for concern” (CRI(2014)19, 3 June 2014, paragraph 116). The Commissioner for Human Rights of the Council of Europe also observed that there is a continuing practice of segregating Roma children within the class or the school leading to school drop-outs, and that the number of trained school mediators has decreased (CommDH(2014)14, 8 July 2014, paragraphs 175–180). With respect to employment, the Committee notes that, in 2011, the unemployment rate (15–64 years) for Roma was estimated at 33 per cent compared with 18 per cent for non-Roma (43 per cent for Roma women and 21 per cent for non-Roma women) (Regional Roma Survey 2011, UNDP/WB/EC). The Committee welcomes the detailed information provided by the Government on active labour market measures taken by the National Agency for Employment from 2010 to 2013 to promote equal opportunities and access to employment for Roma. It notes however that despite the relatively high number of beneficiaries (from 57,000 to 72,000 each year), the number of persons actually entering employment as a result of these measures remains low and declined over the reporting period (from 6,696 in 2010 to 4,655 in 2013). The Committee notes from the ECRI’s report that a new Strategy on the Inclusion of Romanian Citizens belonging to the Roma minority for the period 2012–20 (2012–20 Strategy) was adopted on 14 December 2011, replacing the 2011 Strategy and pursuing the same goals with respect to the promotion of equal access and treatment in education, training and employment both in the public and the private sectors. It further notes that the ECRI underlines the difficulties encountered in implementing the previous and current strategies, including the lack of funds and coordination between the actors concerned (CRI(2014)19, paragraphs 109–110). The Committee requests the Government to provide information on the measures taken to assess the extent of and effectively address school segregation with respect to Roma pupils and to promote their participation in education and training at the various levels, including through school mediators. The Committee encourages the Government to ensure sufficient funding and adequate administrative coordination to further equal opportunities in employment among the Roma community and requests the Government to continue providing information on the measures taken in this regard in collaboration with the social partners, including within the framework of the 2012–20 Strategy, and the results achieved, as well as any information available on the assessment of the 2011 Strategy. Recalling the Government’s past target of employing 10,000 Roma annually, the Committee requests the Government to provide information on the underlying reasons behind the decline of persons from the Roma community entering employment each year.

Enforcement. The Committee notes from the CNCD’s report of activity for 2013 that 858 complaints were examined in 2013 (548 in 2012) of which 53.5 per cent related to access to employment and occupation. The Committee notes from the Government’s report that the number of cases heard and tried under Ordinance No. 137/2000 in the field of employment and occupation, where the CNCD acted as an expert on discrimination decreased to 550 in 2013 (746 in 2012 and 1152 in 2010). The Committee notes the Government’s indication that the Constitutional Court issued a decision (No. 997/2008) which declared unconstitutional section 20(3) of Ordinance No. 137/2000, thereby preventing the CNCD from invalidating discriminatory laws. Therefore, the CNCD while examining claims alleging discrimination deriving directly from the content of a legal provision in the field of employment and occupation, does not have the competency to determine such cases. The Committee also understands that the same restriction applies to the civil courts. The Committee requests the Government to continue to provide information on the discrimination cases examined by the CNCD, specifying any further changes to legislation or court decisions that would affect its competency to examine cases relating to discrimination in employment and occupation. In this context, the Committee requests the Government to indicate how the protection of workers against discrimination is enforced when discrimination derives directly from the content of discriminatory legal provisions. Please also indicate whether the civil courts are competent to determine claims alleging discrimination resulting from discriminatory legal provisions and, if not, how victims of such discrimination can avail themselves of their right to non-discrimination. Please provide information on cases of discrimination either recorded or detected by the labour inspection services, as well as specific information on any legal ruling relevant to issues of discrimination in employment or occupation.