Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Tajikistan (Ratification: 1993)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations from the International Trade Union Confederation, received on 11 September 2019.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee recalls its previous comments noting that the grounds of “colour” and “social origin”, which were prohibited grounds of discrimination in the 1997 Labour Code, are no longer covered by section 7 of the 2016 Labour Code, and that the ground of “social status” mentioned in the 2016 Labour Code is narrower than “social origin” mentioned in the Convention. In its previous comments, the Committee also recalled that section 2 of the Law on Civil Service No. 223 of 5 March 2007 provides that “citizens shall have equal rights to be recruited by the civil service, irrespective of the nationality, race, gender, language, religion, and political views, social and proprietary status” but that it does not include the ground of “colour”. The Committee notes the Government’s indication in its report that it acknowledges that the “concept of skin colour” is not covered by national legislation, including in relation to the civil service. It also welcomes the Government’s indication, in its additional information, according to which working groups are discussing possible amendments to the legislation with a view to including the prohibition of discrimination against “skin colour” in article 7(2) of the Labour Code. The Committee draws the Government’s attention once again to paragraph 853 of its General Survey of 2012 on the fundamental Conventions, according to which where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all of the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee therefore asks the Government to take the opportunity to amend section 7 of the Labour Code to ensure that the grounds of “colour” and “social origin” are expressly included as prohibited grounds of discrimination. It also asks the Government to take the necessary steps to amend section 2 of the Law on Civil Service No. 223 of 5 March 2007 to include the grounds of “colour” and “social origin”, in order to ensure that discrimination is prohibited on the basis of at least all of the grounds set out in Article 1(1)(a) of the Convention both in the private and public sectors. It asks the Government to provide information on the progress achieved to this end.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and asks the Government to provide information in response to the questions raised in that observation.

Discrimination based on sex. Sexual harassment. In its previous comments, the Committee recalled its 2002 general observation highlighting the importance of taking effective measures, including legislative measures, to address both forms of sexual harassment (quid pro quo and hostile environment) in employment and occupation. The Committee notes the Government’s indication that it is developing a legislative and regulatory framework to prevent violence against women and to offer assistance to victims of violence. In its supplementary information, the Government also mentions the adoption of the Free Legal Aid Act (2020), which ensures that free legal aid is available to people from all walks of life, including the victims of sexual harassment, regardless of their gender.While welcoming this information, the Committee would like to draw the Government’s attention once again to paragraphs 789–794 of its 2012 General Survey on the steps necessary to ensure prevention from, and protection against, sexual harassment of both men and women in employment and occupation. In particular, the Committee notes that, without a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment, it remains doubtful whether the legislation will effectively address all forms of sexual harassment (paragraph 791). The Committee therefore asks the Government to include in the labour legislation a comprehensive definition and an explicit prohibition of both quid pro quo and hostile environment sexual harassment and to provide information in this regard. The Committee also asks that the Government take practical steps to address sexual harassment against both men and women workers in the public and private sectors, including through the provision of help lines, legal assistance or support units to assist victims of sexual harassment, reporting and complaint mechanisms, the formulation and implementation of codes of conduct or related guidelines, awareness-raising and training activities for workers, employers and their respective organizations and enforcement officials. The Committee asks the Government to provide detailed information on any measures taken in this regard.

Articles 1(1)(a) and 5. Restrictions to the employment of women. Protective measures. In its previous comments, the Committee noted that the Labour Code provides for restrictions on women’s employment as well as special measures for women. The Committee notes the Government’s reiterated indications regarding the legal framework applicable to the work of women. The Committee notes, from the supplementary information, that while the Government indicates that it is devoting every effort to achieving a transition from its frequently defensive approach to women’s employment, to an approach geared to the encouragement of gender equality and the elimination of discriminatory laws and practices, it also states that it considers the prohibition of employment of women in unsafe, underground and hazardous working conditions as a fundamental principle. In this regard, the Government indicates that the list of occupations where women’s employment is prohibited, under section 216 of the Labour Code is contained in the Government Decision No. 179 of 4 April 2017, entitled “List of occupations in which it is prohibited to employ women and the rules concerning the maximum loads they may lift and handle manually”.

The Committee draws the Government’s attention to the major shift that has occurred over time to move from a purely protective approach concerning the employment of women to one based on promoting genuine equality between men and women and eliminating discriminatory law and practice. It recalls that protective measures for women may be broadly categorized into those aimed at protecting maternity in the strict sense, which come within the scope of Article 5 of the Convention, and those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention and constitute obstacles to the recruitment and employment of women (see the General Survey of 2012, paragraph 839). The Committee further recalls that it considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Restrictions on women’s employment (“non-pregnant” and “non-nursing” women) are contrary to the principle of equality of opportunity and treatment between men and women, unless they are genuine protective measures put in place to protect their health. This protection must be determined on the basis of the results of a risk assessment showing that there are specific risks for women’s health and/or safety. Therefore such restrictions, if any, have to be justified and based on scientific evidence and, when in place, have to be periodically reviewed in the light of technological developments and scientific progress to determine whether they are still necessary for protective purposes. The Committee further recalls that it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access the types of employment concerned on an equal footing with men (see General Survey of 2012, paragraph 840). The Committee emphasizes the need to review the provisions of the Labour Code restricting the work of women with children under a certain age (3 years for example) in the light of gender equality and, in particular, the importance of reconciling work and family responsibilities for workers of both sexes. It points out that measures aimed at reconciling work and family should be available to men and women with family responsibilities on an equal footing.  The Committee therefore asks the Government to review its approach regarding restrictions on women’s employment in light of the above principles to ensure that protective measures are limited to maternity protection in the strict sense or based on occupational safety and health risk assessments and do not constitute obstacles to the employment of women. It asks the Government to provide information on any development in this regard. The Committee also asks the Government to provide a copy of the Government Decision No. 179 of 2017, entitled “List of occupations in which it is prohibited to employ women and the rules concerning the maximum loads they may lift and handle manually”.

Articles 1(2) and 5. Inherent requirements and special measures of protection and assistance. The Committee recalls its request concerning the interpretation of section 7(2) of the 2016 Labour Code regarding “inherent requirements of a particular job” and “special care for persons in need of increased social protection”. The Committee would like to draw the Government’s attention to the distinction to be made between those two exceptions. As far as “inherent requirements of a particular job” are concerned, the Committee recalls that there are very few instances where the grounds listed in the Convention actually constitute inherent requirements of the job and that this exception has always been interpreted in a restrictive manner. The distinctions made on the basis of inherent requirements of a particular job should be determined on an objective basis and take account of individual capacities, otherwise such practices may then come into conflict with the Convention’s provisions calling for the implementation of a policy designed to eliminate discrimination (see the General Survey of 2012, paragraphs 827–831). Special measures of protection and assistance, under Article 5 of the Convention, are important for ensuring equality of opportunity in practice as they address specific needs or the effects of past discrimination with a view to restoring a balance (see the General Survey of 2012, paragraphs 836–837). Noting that the Government’s report only contains information regarding measures taken to protect women, minors and persons with disabilities, the Committee asks the Government to provide examples of jobs for which there are inherent requirements that would not be considered discriminatory, as envisaged under section 7(2), and a copy of any administrative or judicial decisions in relation to inherent requirements of a particular job.

Article 1(3). Prohibition of discrimination at all stages of employment. Private sector. In its previous comments, the Committee requested the Government to confirm that section 7(1) of the Labour Code – which prohibits discrimination in “labour relations” – also covers access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. In its additional information, the Government indicates that section 7(1) of the Labour Code fails to address all areas of employment and occupation, and that it will examine the question of revising the legislation in this regard. The Committee therefore asks the Government to: (i) clarify the areas of employment covered by section 7(1) of the Labour Code, and (ii) take all the necessary measures to amend the Labour Code, without delay, to ensure that the prohibition of discrimination covers all areas of employment and occupation, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. In the meantime, the Committee asks the Government to provide information on how it is ensured that the principle of non-discrimination is applied in practice to all areas of employment.

Civil service. The Committee recalls that in its previous comments it noted that section 2 of the Law on Civil Service No. 223 of 5 March 2007 only covers recruitment. It notes, from the additional information, the Government’s statement that in the course of their duties in the public service, public officials are governed by the Labour Code, which bans all forms of discrimination and guarantees protection for workers’ rights. The Government also refers to sections 34–41 of the Law on Civil Service which provide that civil servants enjoy the protection of all labour rights including in relation to working hours, wages, leave and social benefits, and declares that, for these reasons, it does not consider it necessary to amend the Law on Civil Service. Noting that section 7(1) of the Labour Code does not cover all areas of employment, the Committee asks the Government to ensure that civil servants are protected against discrimination in all conditions of employment (working time, wages, bonuses, occupational safety and health, etc.). The Committee also asks the Government to provide information on the application in practice of sections 31–41 of the Law on Civil Service No. 223 of 5 March 2007, for example on any cases of discrimination in employment or occupation brought to the relevant authorities by civil servants.

Article 2. National equality policy with respect to grounds other than sex. Noting that the Government’s report does not contain any information in this regard, the Committee reiterates its request for information on the steps taken or envisaged to adopt and pursue a national policy on equality of opportunity and treatment in employment and occupation addressing the other grounds protected by the Convention, namely race, colour, national extraction, religion, political opinion and social origin, as required by Article 2 of the Convention.

Promoting access of girls and women to education and vocational training. Recalling its previous request for information on any specific measures taken to improve women’s and girls’ educational opportunities and the results achieved, the Committee notes that the Government indicates that, in 2019, with the assistance of the Labour and Employment Agency (LEA) and within the State Programme to Promote Employment, 13,749 persons, of which 10,311 were women, attended vocational training through short courses at vocational education institutions for adults. The Government further indicates that women may also acquire vocational training in occupations required by the labour market through fee-paying short courses within the LEA system and receive certificates of existing labour skills, through the recognition and validation of adults’ competencies. With reference to its 2019 observation on this Convention, the Committee hopes that the various measures taken by the Government to promote gender equality, including by fighting gender stereotypes, will also improve the access of girls and women to education and vocational training.  The Committee asks the Government to pursue its efforts to improve girls’ and women’s enrolment in secondary and higher levels of education and to encourage their participation in a wider range of vocational training courses including in technical areas, and to provide information on the results achieved. The Committee also asks the Government to provide statistical information disaggregated by sex on the participation rates of men and women in the various types and levels of education and training courses.

Article 4. Persons suspected of, or engaged in, activities prejudicial to the security of the State. The Committee recalls that measures of state security – which are an exception under Article 4 of the Convention – should be sufficiently well defined and precise to ensure that they do not become instruments of discrimination on the basis of any ground prescribed in the Convention. The Committee asks the Government to provide detailed information on the content of any provisions of its national legislation that would restrict or prohibit a person from accessing employment or particular occupations or allow different treatment of persons because they are suspected of, or engaged in, activities prejudicial to the security of the State. It also asks the Government to provide information on the specific procedures establishing the right of appeal available to persons affected by such measures.

Awareness-raising and enforcement. The Committee notes the ITUC’s indication that the Government has not provided any information on the activities of the Committee for Women’s and Family Affairs (CWFA) nor on the number of complaints that it has dealt with. In its supplementary information, the Government indicates that, in the reporting period, the law enforcement agencies did not find a single case involving a breach of the non-discrimination principle in the labour and employment sphere, and neither did the competent national bodies receive any complaint citing labour discrimination. The Committee also notes the Government’s general indication that the competent national bodies regularly conduct educational programmes to improve public understanding of the application of the non-discrimination laws. In this regard, the Committee would like to draw the Government’s attention to the fact that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the General Survey of 2012, paragraph 870). The Committee therefore asks the Government to identify the specific measures taken or envisaged to raise awareness among workers, employers and their respective organizations as well as enforcement officials and the general public, of the anti-discrimination provisions in the legislation, and to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Committee asks the Government to continue to provide information on the number of inspections carried out during the reporting period and the violations of the principle of non-discrimination in employment and occupation detected by, or reported to, the labour inspectors and dealt with by the courts, identifying if possible the ground of discrimination concerned and the outcome of the case. The Committee also asks that the Government provide information on the activities of the Committee for Women’s and Family Affairs (CWFA) concerning the handling of complaints of discrimination in employment and occupation and on the promotion of gender equality.