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CHAPTER VII
Substantive provisions of labour legislation:
The Eliminiation of Discrimination in Respect of Employment and Occupation
The importance of equality in the world of work
Equality of opportunity and treatment in employment and occupation is
a very important aspect of the overall principle of equality, which is
now almost universally endorsed. It is one of the most fundamental principles
underlying any democratic society and is set forth in many international
instruments, national constitutions and laws. However, despite the substantial
progress made, great inequality still persists in almost all parts of
the world, between women and men, between races and on such grounds as
religion, political opinion, national extraction and social origin.
The elimination of discrimination in respect of employment and occupation
is one of the central and most important concerns of the ILO.1 It features prominently in the Declaration
of Philadelphia, annexed to the Constitution of the ILO, which states
that:
all human beings, irrespective of race, creed or sex, have
the right to pursue both their material well-being and their spiritual
development in conditions of freedom and dignity, of economic security
and equal opportunity; [..]
Several international labour standards adopted in the 1950s, 1960s and
1970s gave specificity to this basic principle. The ILO Declaration on
Fundamental Principles and Rights at Work of 1998 also lists the elimination
of discrimination in respect of employment and occupation as one of the
fundamental principles which member States, by the very fact of membership
in the ILO, must respect, promote and realize in good faith.
At the international level, there are a number of United Nations and
other multilateral instruments that concern the elimination of discrimination
in general, and particularly the 1965
International Convention on the Elimination of All Forms of Racial Discrimination,
the International
Covenants of 1966 on Economic, Social and Cultural Rights, and on
Civil and Political Rights, and the 1979
Convention on the Elimination of All Forms of Discrimination against
Women. While these instruments contain provisions relevant to equality
in the world of work, they are of more general scope.
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ILO instruments
The elimination of discrimination and the promotion of equality in employment
and occupation are recognized as two sides of the same coin. They are
promoted in several ILO Conventions and Recommendations, the most important
of which are:
and their associated Recommendations.2 These two Conventions have been named
by the ILO's Governing Body among the eight fundamental or core Conventions
which all member States should ratify. Various other ILO instruments are
also directly relevant to this topic.3
Another international instrument is of particular relevance to this
chapter, namely the 1966
ILO/UNESCO Recommendation concerning the status of teachers. It provides
that All aspects of the preparation and employment of teachers should
be free from any form of discrimination on grounds of race, colour, sex,
religion, political opinion, national or social origin, or economic condition (Chapter
II, article 2.7).
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The role of member States and labour legislation in
relation to equality in employment and occupation
Under the ILO Declaration of 1998, all member States have an obligation
to respect, promote and realize the principle of the elimination of discrimination
in respect of employment and occupation. This principle is elaborated
in Conventions Nos. 100 and 111, which require ratifying member States
to:
- promote and ensure the application to all workers of the principle
of equal remuneration for men and women workers for work of equal value
(Article 2, paragraph 1, of Convention No. 100);
- promote the objective appraisal of jobs on the basis of the work
to be performed where this would assist in giving effect to the principle
of equal pay (Article 3);
- cooperate with the employers' and workers' organizations concerned
in giving effect to this principle (Article 4);
- declare and pursue a national policy designed to promote equality
of opportunity and treatment in respect of employment and occupation
with a view to eliminating any discrimination in that area (Article
2 of Convention No. 111);
- undertake a number of specific measures in areas where the government
has power to act, such as enacting legislation and promoting educational
programmes to secure the acceptance and observance of the equality
policy (Article 3(b)), repealing any statutory provisions and modifying
administrative instructions or practices which are directly or indirectly
discriminatory in this area (Article 3(c)) and ensuring that the equality
policy is applied in employment under government control, particularly
in the civil service and in public enterprises (Article 3(d)), and
in government run vocational guidance and training institutions and
placement services (Article 3(e));
- use special measures to meet the particular requirements of groups
which have traditionally suffered discrimination in employment or occupation,
where this may assist in achieving equality, after having consulted
the representative workers' and employers' organizations (Article 5
of Convention No. 111).
The role of labour legislation in achieving the overall objective is
made clear in the specific wording of Article 3(b) and (c) of Convention
No. 111, whereas Article 2, paragraph 2, of Convention No. 100 lists
the role of national laws and regulations as one of a number of means
by which its principle may be implemented, the others including wage
determination machinery, collective agreements negotiated by the social
partners or a variety of such measures.
In many countries, implementation of the principle of equality or non-discrimination
is guaranteed first and foremost by national constitutions, which frequently
contain a general equality provision that all citizens shall be treated
equally. Increasingly, modern constitutions include provisions on equality
at work. Moreover, many new comprehensive labour laws include an initial
chapter on fundamental principles, containing a general statement regarding
equality of treatment and opportunity in employment and occupation, as
well as more specific provisions regarding such principles as equal pay.
At the same time, possibly as a reflection of the seriousness given to
gender equality following the Beijing United Nations Fourth Conference
on Women and its follow-up (Beijing +5 Conference, New York, June 2000),
many States are adopting a mosaic of regulations in addition to basic
equality laws with a view to ensuring gender equality and the elimination
of discrimination on the basis of gender in all social and economic areas.
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The basic principle of non-discrimination in national
law
An example of a national constitution that has taken a detailed approach
to enunciating the equality principle is the following:
 Example
Some labour codes cover the full breadth of the principle simply by
mirroring the standards of Conventions Nos. 100 and 111 almost identically:
Example
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Definition of discrimination
Discrimination is defined in Convention No. 111 as any distinction,
exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin, which has
the effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation.
The use of the expression has the effect of nullifying or impairing is
a drafting technique that addresses the issue of direct and indirect
discrimination. At the national level, drafters should also be alert
to the importance of preparing texts that cover both types of discrimination.
Direct discrimination exists when unequal treatment stems directly from
laws, rules or practices making an explicit difference on one particular
ground, such as laws which do not allow women to sign contracts, which
amount to direct sex discrimination. Indirect discrimination refers to
situations, rules and practices which appear neutral, but which in practice
lead to disadvantages primarily suffered by a specific category of persons.
For example, requirements which are irrelevant for the job in question
and which typically can only or disproportionately be met by men, such
as certain height and weight levels, constitute indirect discrimination
on the basis of sex.
In short, the intention to discriminate is not required. Indirect discrimination
against women, through reference to criteria which appear non-discriminatory,
but which in practice affect a disproportionately large number of women,
is particularly common, especially in the field of equal pay (see below).
An example might be where certain groups of employees, such as part-time
workers, who because of their predominant pattern of role distribution
in society contain far greater numbers of women than men, are excluded
without any reason from payments granted by the employer to the remainder
of an establishment's workforce. Such a form of differentiation is not
on the surface applied because the workers are women, but because they
are part-time workers.
The care taken to qualify discrimination as direct or indirect has
been spurred in a number of countries by the attention given to this
aspect of the question in multilateral instruments. For those countries
belonging to the European Union, for example, a number of laws, both
general equality texts and specific labour laws, include references to
direct and indirect discrimination following the adoption of the European
communities Council Directive on the implemention of the principle of
equal treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions.4 Article
2.1 of the Directive states that For the purposes of the following
provisions, the principle of equal treatment shall mean that there shall
be no discrimination whatsoever on grounds of sex either directly or
indirectly by reference in particular to marital or family status.
There are however exceptions to what might be considered discriminatory
treatment. Convention No. 111 lists four:
- Article 1, paragraph 2: Any distinction, exclusion or preference
in respect of a particular job based on the inherent requirements
thereof shall not be deemed to be discrimination;
- Article 4 covers measures taken in relation to justifiably suspicious
acts considered to be prejudicial to the security of the State, with
the proviso that there be a right of appeal to the competent body;
- Article 5, paragraph 1: Special measures of protection or assistance
provided for in other Conventions or Recommendations adopted by the
International Labour Conference shall not be deemed to be discrimination;
and
- Article 5, paragraph 2 provides that special measures shall not
be deemed to be discrimination where they are put in place to meet
particular needs of groups of persons who, because of certain grounds,
are generally recognized to require such positive action (for example,
sex, age, disability, family responsibilities or social and cultural
status).
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Inherent requirements of the job
With regard to the exception relating to the inherent requirements of
the job, legislators have to be careful to ensure that this exception
covers genuine or bona fide needs in relation to a specific job, post
or position. Some laws on this point make a general statement concerning
the exemption of inherent requirements of the job. Others make a general
statement and then detail a number of specific situations where a genuine
occupational qualification would be permissible, despite the general
legislative ban on discrimination in employment, as illustrated in the
following example:
Example
From the above example it is clear that texts may go into quite a lot
of detail on a specific and definable job, function or task. In addition,
the environment in which the task is carried out also may play a role
in clarifying the exception relating to inherent requirements. This is
an area where cultural sensitivity may also come into play (see below).
The above example also demonstrates the importance of the second element
in clarifying this exemption, namely the proportionality of the requirement
in relation to the overall importance of prohibiting discrimination in
employment. Those interpreting the legislative text may, of course, prefer
to assess whether particular jobs fit the legislative exemption on a
case-by-case basis. What is clear, however, is that general exclusions
of broadly defined occupational groups or jobs from the scope of measures
designed to promote equality in employment, by means of excessive use
of the inherent requirements exemption, are not in harmony with the ILO
Declaration of 1998 as regards the elimination of discrimination.
The above example addresses discrimination on the grounds of sex, and
it is true that many laws dealing specifically with gender equality make
such distinctions. Quite common examples concern the performing arts
or, as seen above, tasks involving particular physical intimacy. A general
word of warning for drafters working in the area of gender equality is
that it is necessary to ensure that the text makes it clear that the
determination of whether an exclusion is based on an inherent requirement
of the job or is arbitrarily discriminatory should be made on an objective
basis and should take account of individual capacities.
Inherent requirements of the job are often seen as well in the area
of religion and political opinion. Political opinions may in certain
limited circumstances constitute a bona fide qualification for certain
senior and particularly sensitive posts, for example those involving
special responsibilities for the development of government policy. It
is essential, however, that this exception should not be carried beyond
certain limits, evaluated on a case-by-case basis, and that it should
not amount to a systematic screening based on political grounds. The
ILO's Commission of Inquiry created to examine alleged political discrimination
by the then Federal Republic of Germany pointed out that:
[..] the acceptance of the contention that the category "official" in
a given country could correspond to the concept of "a particular
job" in Convention No. 111 would, however, result in permitting
entirely different exceptions from one country to another, determined
not by the nature of work or functions involved, but according to where
the particular activities lay in the public sector and were entrusted
to persons employed with the status of "officials". Great
variations exist even in market economy countries in the extent to
which given activities lie in the public or private sector [..] this
situation also undergoes changes over time, as particular activities
are nationalized or privatized [..] To make inherent job requirements
vary according to such vagaries would be destruction of any international
standard.5
A common example of an exemption based on religion occurs in employment
in religious educational establishments:
Example
One of the major difficulties in applying such provisions concerns the
burden of proof. As a general rule, the employer is required to prove
that the special treatment is justified by objective reasons unrelated
to a discriminatory criterion, or that this criterion constitutes an
essential (or bona fide or legitimate) requirement for the work involved.
The issue of burden of proof is dealt with in greater detail below.
Regarding the issue of the working environment as justification for
the inherent requirement exception, it is interesting that, pursuant
to the terms of certain laws, considerations of decency and privacy may
constitute a valid criterion for such an exemption.
Example
Similarly, certain laws make it clear that the defining criterion is
not so much the activities and tasks being done, but the nature of the
establishment in which the work is to be performed:
Example
In certain jurisdictions the legislation permits an inherent requirement
exception, but leaves the detail to be established by an implementing
law:
Example
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Measures relating to state security
With regard to the exception concerning measures taken in relation to
suspected acts prejudicial to the State (Article 4 of Convention No.
111), it is important to note that, in the international context, provisions
covering such situations have been applied strictly in order to avoid
any undue limitations being placed on the very guarantee of equality
and non-discrimination that the various international texts, including
Convention No. 111, seek to guarantee.
Legislative texts using the security of the State as a basis for an
exception to the non-discrimination principle should be drafted in a
sufficiently narrow way to avoid the risk of coming into conflict with
the broader principle. The ILO supervisory bodies responsible for verifying
the application of Convention No. 111 in law and in practice by ratifying
States have made comments under Article 4 in relation to certain anti-terrorism
statutes. For example, the Committee of Experts on the Application of
Conventions and Recommendations has criticized a law which defines terrorism
as including all acts instigated by one or more persons belonging to
an organization aiming to change the characteristics and political, legal,
social, secular or economic order of the country. In the view of the
Committee of Expert, the wide powers given under that legislation go
beyond the Article 4 exception to the equality rule when activities prejudicial
to the State are justifiably suspected.6
In addition to these substantive issues linked to the exception relating
to the security of the State, texts seeking to incorporate this exception
into the national framework should be careful to respect the necessary
procedural guarantees. Under Article 4 of Convention No. 111, there should
be an appeal available to a competent body established in accordance
with national practice. Moreover, the mere existence of the possibility
of the right of appeal, while important for this exception, may not be
sufficient in itself: there must be a body, which must be competent in
accordance with the rules and procedures pertaining in national practice.
A variety of appeals systems could be used to permit the exercise of
this right of appeal. For example, appeals on this point could follow
the normal procedural rules of the judiciary or administrative courts.
In certain cases, the special procedures that are often established under
emergency legislation could be appropriate. The competency criterion
implies not only the correct application of the power to hear the reasons
why measures have been taken against the person in question, but also
that the body concerned affords the guarantees of natural justice, including
timeliness, the opportunity to know and rebut specific charges, representation
procedures and reasoned decisions.
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Special protective measures
Most ILO instruments containing special provisions affording protection
against discrimination apply to women, particularly with the aim of protecting
the female reproductive function. The ILO Conventions and Recommendations
in this category include:
Maternity protection
Maternity Protection
Convention, 1919 (No. 3).
Maternity Protection
Convention (Revised), 1952 (No. 103) and Recommendation
No. 95.
Maternity Protection
Convention, 2000 (No. 183) and Recommendation
No. 191.
Occupational safety and health
Lead Poisoning
(Women and Children) Recommendation, 1919 (No. 4).
White Lead (Painting)
Convention, 1921 (No. 13).
Radiation Protection
Recommendation, 1960 (No. 114).
Maximum Weight
Convention, 1967 (No. 127) and Recommendation
No. 128.
Benzene Convention,
1971 (No. 136) and Recommendation
No. 144.
Chemicals Convention,
1990 (No. 170) and Recommendation
No. 177.
Night work
Night Work (Women)
Convention (Revised), 1948 (No. 89), and the Protocol of 1990.
Night Work Convention,
1990 (No. 171) and Recommendation
No. 178.
Conditions of work
Underground
Work (Women) Convention, 1935 (No. 45).
Welfare Facilities
Recommendation, 1956 (No. 102).
Reduction of
Hours of Work Recommendation, 1962 (No. 116).
Paid Educational
Leave Convention, 1974 (No. 140).
While it is not the objective of this chapter to provide assistance
in the drafting of protective provisions of this type in national labour
laws, it is important to draw attention to the international debate surrounding
such provisions. The debate centres not so much on whether giving women
workers this special treatment leaves men at a disadvantage on the grounds
that men should enjoy such favours too (maternity leave is one point
here, since men do not physically carry the child and give birth), but
rather on whether the protections accorded have amounted to an obstacle
to achieving women's equality in the labour force, since employers may
be reluctant to hire and retain workers who enjoy additional benefits
(such as the transfer of women workers away from work involving chemical
substances dangerous to fertility). It has led the ILO's member States
in recent years to adopt instruments that are more adapted to the modern
approach to equality, for example containing principles applicable to
both men and women, as illustrated by Convention No. 171. Where a prohibition
on women's access to certain occupations and jobs is genuinely linked
to the need to protect their reproductive health, norms such as those
contained in the above standards are advisable. However, health protection
against specific hazards should be available to all workers irrespective
of their sex. Special measures for the benefit of women should only be
taken for work that has been proven to be potentially prejudicial to
reproduction, and they should be reviewed periodically in the light of
advances in scientific knowledge.
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Affirmative action measures
The ILO has published a large amount of research which can help guide
policy-makers and drafters in relation to the exception from the prohibition
of discrimation allowed for affirmative action measures that are taken
to promote the equality of opportunity of certain groups which may have
suffered discrimination in employment in the past (Article 5, paragraph
2, of Convention No. 111).7
Many countries have adopted special measures allowing affirmative action
on behalf of persons belonging to various groups that have suffered disadvantage.
These provisions flow from the observation that merely prohibiting discrimination
in law is often insufficient to eliminate de facto discriminatory practices.
Positive measures may therefore be seen as steps designed to eliminate
and make good past inequalities. They are necessarily limited in time,
since their justification falls once the unfairness has been redressed.
However, this may take many decades, as demonstrated by the affirmative
action executive orders for race equality in the United States.
A large number of countries have recently either adopted specific laws
on this subject for private and/or public employment or have included
such provisions in amendments to the labour legislation. Legislating
for affirmative action is a policy decision that requires thorough debate,
as certain employers may perceive it to be an unnecessary interference
in the labour market.
Some national constitutions contain affirmative action clauses which
either require or permit positive measures to be taken in all areas of
social and economic action, as is the case in Argentina, Fiji, India,
Malaysia, Namibia and South Africa. Given the controversial nature of
the concept of affirmative action itself, its inclusion in the basic
law of the land could be wise for many countries. While this approach
may not guarantee unanimous acceptance of the concept, it undoubtedly
enhances the legitimacy of such measures. Indeed, for certain countries
that are emerging from institutionalized discriminatory practices in
all walks of life, including employment (such as apartheid), constitutional
affirmation of the need to redress past wrongs may be seen as the very
foundation of the new democratic dispensation of the country. This is
the thinking behind the Namibian Constitution:
Example
Laws on affirmative action in employment usually target specific groups,
which commonly include women, minorities (linguistic, ethnic, etc.) and
persons with disabilities. The Canadian federal jurisdiction was one
of the first to adopt an employment equity law, aimed at correcting the
disadvantage in employment experienced by four specified groups: women,
aboriginal people, persons with disabilities and persons who are in a
visible minority in Canada because of their race or colour. In a relatively
brief text, the legislator laid down the obligation of employers to consult
with representatives of their employees on ways to implement employment
equity. The following excerpt from the Canadian legislation is a good
example of clarity in the formulation of the purpose of affirmative action
and the measures for putting that purpose into effect, through consultation
with the social partners.
Example
A number of European Union countries have also specifically legislated
for affirmative action in relation to employment, in particular with
regard to women. As noted above, this tendency is in line with European
directives on equality between men and women in a number of domains,
including the world of work. The following example from Italy shows that
the legislative process is clearly intended to attain substantive equality
between men and women at work, but at the same time the text specifies
that affirmative action is also aimed at promoting a balance between
family and work responsibilities, thus demonstrating a wider policy objective
by also promoting the equality of workers with family responsibilities.
The following excerpt is also a good example of specific measures to
help implement affirmative action in employment, such as permitting requests
to the competent ministry for reimbursement of any expenses incurred
and allowing access to European Community funds for affirmative action
projects.
Example
Developing countries have also taken policy decisions to eliminate discrimination
in employment by adopting specific positive action laws. The Namibian
Affirmative Action (Employment) Act, in its preamble, states that its
aim is
To achieve equal opportunity in employment in accordance with
article 10 and article 23 of the Namibian Constitution; to provide
for the establishment of the Employment Equity Commission; to redress
through appropriate affirmative action plans the conditions of disadvantage
in employment experienced by persons in designated groups arising
from past discriminatory laws and practices; to institute procedures
to contribute towards the elimination of discrimination in employment;
and to provide for matters incidental thereto.
In a text longer than the Canadian and Italian examples cited above,
the Namibian law defines affirmative action and gives a non-exhaustive
list of measures that are covered by the concept. It designates the groups
to be covered by the law and lays down a sophisticated procedure whereby
relevant employers (specified in implementing regulations) must fulfil
the requirements of the law.
Example
The Namibian legislation is also an example of good practice in setting
out details to help in the practical implementation of affirmative action
in employment. It contains a number of provisions explaining how employers
are to prepare and implement its affirmative action plan and emphasizes
the need for senior commitment in the enterprise for the implemention
of the plan. The law covers both the private and public sectors and the
following extract shows that the legislator took care to specify how
the public service modalities should apply. The law is also a good example
of the importance of consulting workers' representatives.
Example
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Concept of employment and occupation
Employment and occupation
Article 1, paragraph 3, of Convention No. 111 defines employment
and occupation as including access to vocational training, access
to employment and to particular occupations, and conditions of employment.
The accompanying Recommendation No. 111, in Paragraph 2, states that
a non-discrimination policy should be applied by means of legislation
(or collective agreements or any other manner consistent with national
conditions and practice) to cover the following:
- access to vocational guidance and placement services;
- access to training and employment of the worker's own choice on
the basis of individual suitability for such training or employment;
- advancement in accordance with the worker's individual character,
experience, ability and diligence;
- security of tenure of employment;
- remuneration for work of equal value;
- conditions of work, including hours of work, rest periods, annual
holidays with pay, occupational safety and occupational health measures,
as well as social security measures and also facilities and benefits
provided in connection with employment;
- employment in government agencies and in the civil service; and
- in the activities of vocational guidance, training and placement
services under the control of the national authority.
A number of recently adopted equality laws contain very detailed provisions
prohibiting discrimination either directly or indirectly in all aspects
of employment. The following extracts from the South African Employment
Equity Act show that the combination of an extensive definition of employment
policy or practice, linked to a ban on discrimination based on a
list of specified grounds can ensure that the text is clear for its intended
users, namely employers and workers at the workplace.
Example
In other jurisdictions, the various guarantees are laid down in different
sections of the texts. In this respect, the importance of stating the
principle in the chapter on access to employment can outweigh the inelegance
of repetition. The Russian Labour Code, for example, lays down the fundamental
principle in section 3 and adds it to the technical part on employment.
Example
It is therefore clear that the principle of non-discrimination should
be respected across the broad range of work-related issues: from hiring,
training and advancement, to retaining a worker in employment, as well
as in the fixing of terms and conditions of employment. Legislators attempting
to incorporate the principle into all aspects of employment should take
care to ensure that terms such as employment and work are
clearly defined so as not to thwart that purpose.
With respect to the term occupation, it is often defined as
including the trade, profession or type of work performed by an individual,
irrespective of the branch of economic activity to which he or she belongs
or his or her professional status. This category of the labour force
ranges from farmers to lawyers via craftspeople. Its heterogeneity is
reflected in a wide variety of practical conditions governing access
to these activities and requirements in respect of non-discrimination.
Ensuring the principle of equality in such circumstances may mean going
beyond labour codes. Statutes relating to inheritance, family law and
property/commercial title may need reviewing. Where relevant, labour
laws should also include provisions banning discrimination in access
to the material goods and services required to carry on occupations (credit)
and concerning the legal status of individuals (such as, for example,
prohibiting requirements that a married woman must have her husband's
consent in order to carry on a professional activity, travel for work-related
reasons or obtain a passport). Care should also be taken to avoid legislative
provisions that contain seemingly neutral requirements covering the possibility
of joining a profession or carrying on an occupation, but which may involve
indirect discrimination based on one of the prohibited grounds. Where
the exercise of an independent activity or a liberal profession is conditional
on possession of a licence or title issued by a national authority or
by an autonomous professional body, the authority or body must be completely
objective in examining the various professional qualifications of the
different candidates and must apply neutral legal provisions in accordance
with the principles of equality.
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Access to the public service
In relation to access to public employment, the State as an employer
must abide by the same principle of non-discrimination as is expected
of the private sector. Given the volume of state employment in most countries,
even after the large-scale downsizing and privatizations of the 1990s,
the public sector plays a key role as a model employer in the general
implementation of any national policy to promote equality of opportunity
and treatment in employment. The most common, and often the only prohibited
ground of discrimination mentioned in civil service statutes is sex.
However, following the democratization of restrictive regimes over the
last two decades, political opinion is also often specified as a prescribed
ground. Civil service statutes commonly provide that the right to enter
and make a career in the public service is, for all or some of the posts,
based on merit, qualifications or aptitude, which are tested by means
of a procedure of competitive examination. The competitive examination
procedure corresponds to the concern of governments to obtain the services
of the most highly qualified individuals and, ultimately, to establish
the grading system which is indispensable in any public administration.
Where this has not already been done, it would therefore be desirable
for statutory provisions relating in particular to such examinations
and tests to state clearly that non-discrimination is an overarching
principle in access to posts.
ILO research has revealed that not many modern civil service statutes
contain specific non-discrimination provisions.8 The following extract from a recent civil service
statute displays the language often used in such texts with regard to
applications to join the civil service. It also is an example of the
manner in which certain countries from the former communist bloc, following
the democratic changes of the 1990s, attempt to filter in their civil
service laws persons who had been in any way connected with the former
regime. Such screening provisions pose a challenge for policy-makers:
they should not amount to political discrimination (see the discussion
of Article 4 of Convention No. 111 above), nor should they amount to
a blanket exclusion from all posts (see the discussion of the genuinely
inherent requirements of jobs above). Yet they should highlight the role
of the courts in deciding which former links disqualify persons from
holding positions in the civil service.
Example
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Training and vocational guidance
Promoters of equality attach considerable importance to the existence
of specific statutory requirements prohibiting discrimination in training,
which ultimately determines an individual’s real possibilities
of obtaining a job or gaining access to a particular occupation. Very
frequently it is because of inequalities in vocational training that
equality of opportunity and treatment is impaired or nullified in all
other areas. The term vocational training in Convention No.
111 applies to all forms of employment and occupation. It should not
therefore be used in laws in a narrow sense confined merely to apprenticeship
or technical education. Legislative texts intended to ensure non-discrimination
in this area should not overlook the fact that the completion of certain
studies is often necessary to gain access to a particular employment
or occupation, or to a specialized form of further vocational training.
A more deep-rooted problem may emerge if it appears that part of the
population cannot benefit from a general education because of discriminatory
practices affecting them. A number of countries have therefore also included
the principle of equality in education laws and statutes aimed at eliminating
illiteracy. Indeed, most modern constitutions contain basic guarantees
of free and equal access to basic education and the requirement of its
universal availability to their citizens or to persons residing on their
territory. As noted above, the choice of what type of statute to use
to cover this principle is up to policy-makers. Some jurisdictions adopt
specific laws concerning equality in training, others include specific
non-discrimination provisions in general training or labour laws, which
guarantee the same protection but in a different context. Occasionally,
equality laws also specify that there should be no discrimination on
listed grounds in the area of training and vocational guidance.
In practice, it is necessary to ensure that legislative texts on training
make it clear that discrimination may not arise either at the time of
a person's application to be admitted as a pupil, student or trainee
(which could also include the setting of admission requirements that
might lead indirectly to the exclusion of candidates on grounds that
are prohibited) or during the training itself (in some cases provisions
on paid study leave or those requiring courses at night or practical
internships away from the home have a disproportionate impact on one
category of students or trainees). An example of the latter arises where
the courses offered conflict with the family responsibilities that invariably
fall on the woman in the household. Research has shown that women with
family responsibilities experience difficulties in attending night courses
or weekend study trips unless they are supported by state-run or a broader
informal network of support for their family members.9
The following extract from the South African Skills Development Act
shows how specific texts, in addition to equality statutes or general
labour laws, can address discrimination questions in the area of access
to training and vocational guidance:
Example
Particular care should also be taken in including non-discrimination
principles into vocational guidance texts. This is due to the vital role
of such services in opening a wide range of occupations, free from stereotypes
and archaic attitudes, and particularly from bias based on myths about
the work women can and want to do, or so-called women's jobs. Well-drafted
legislation can establish a fairer playing field in this area. Mention
has already been made of the ILO’s human resources development
standards, which provide for the adoption and development of policies
and programmes of vocational guidance and job placement of all persons
on an equal basis and without any discrimination whatsoever.
While in many countries legislation has been quick to address non-discrimination
in such areas on the basis of sex, it is also important for guarantees
to exist to promote equality for ethnic groups, who may for historical,
cultural and other reasons find themselves excluded either directly or
indirectly from vocational guidance programmes. It is also necessary
to adapt programmes to the needs of indigenous and tribal peoples by
laying emphasis on traditional areas of activity and also by opening
up opportunities to possible new areas of employment. Vocational guidance,
in the form of appropriate tests of capacity and aptitude, including
both physiological and psychological characteristics and other methods
of assessing and guiding young persons, should not perpetuate discriminatory
practices. They should, for example, be sensitive to social, cultural
or linguistic characteristics and should place special emphasis on extracting
the information that is genuinely required for a particular job.
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Terms and conditions of employment
With regard to non-discrimination in terms and conditions of employment,
a large number of specific labour laws cover equality with regard to:
(i) security of tenure and dismissal; and (ii) remuneration.
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Security of tenure
Those States which have ratified Convention No. 158 are obliged to eliminate
discrimination in relation to the termination of employment, both in
the case of individual dismissals and collective redundancies. Protection
against termination of employment for discriminatory reasons has increased
markedly over recent years, not only in respect of dismissals based on
the sex of the worker, but also a number of other internationally banned
grounds of discrimination, such as race and colour. Some jurisdictions
regard discriminatory dismissals as being automatically unfair and they
are often characterized as unfair labour practices. The following
extract from the South African general labour law makes it clear that
a number of grounds are considered to be unfair, thus vitiating the dismissal
of an employee if it is based on any of them. It is interesting to note
in this respect that there is a proviso relating to the inherent requirements
of the job (see above).
Example
Some jurisdictions treat dismissal under the chapters of the labour
law concerning the employment relationship and then add specific provisions
on unlawful termination of employment later in the text. The following
example from the Vietnamese Labour Code does this:
Example
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Equality of remuneration
The principle of equal remuneration for men and women workers is set
out not only in the Constitution of the ILO, but also in Convention No.
100. Paying women at a lower rate than men either for the same work or
for work of equal value is a typical feature of this sort of discrimination,
even in the modern world of work. The principle underlying Convention
No. 100 covers equality in an area of employment that is vital, namely
compensation for the services and work rendered. The gap between the
earnings of men and those of women with comparable qualifications often
occurs because women are more likely to be employed in branches of activity
and jobs that are the least well paid, even though the work is of equal
value. In addition, differences between the careers of men and women
usually reflect the difficulty of reconciling work and motherhood or
other family responsibilities. Putting an end to occupational segregation,
tackling the problem of undervalued women's jobs and ensuring
equality for workers with family responsibilities are all areas that
can be included in labour legislation so as to ensure the overall promotion
of the principle of equality in employment.
A number of modern constitutions contain a specific reference to the
concept of equal pay, although many do not specify equal pay between
men and women for work of equal value. The Brazilian Constitution
of 1998, for example, in Chapter II entitled "Social rights",
section 7(XXX), prohibits any difference in pay, in the performance of
duties and in hiring criteria by reason of sex, age, colour or marital
status. Moreover, even in States which have not ratified the Equal Remuneration
Convention, 1951 (No. 100), their constitutional principles may be interpreted
as requiring respect for the principle. In Namibia, article 95 of the
Constitution of 1990 requires in subsection (d) that the State
shall actively promote and maintain the welfare of the people
by adopting, inter alia, policies aimed at the following: membership
of the International Labour Organization and, where possible, adherence
to action in accordance with the international Conventions and Recommendations
of the ILO.
In some cases, where the constitutional provision ensures equality in
general, a more specific statute lays down the concept of equal pay for
equal work or work of equal value. For example, in Malta, article 15
of the 1978 Constitution provides that the State shall aim at ensuring
that women workers enjoy equal rights and the same wages for the same
work as males, whereas section 5 of the Minimum Weekly National Standard
Order of 1976 specifies that in no case shall the wage payable to
a female employee be less than that payable to a male employee in respect
of equal work or work of equal value.
In some constitutions, however, the specificity of the wording makes
it clear that the concept of equal remuneration applies only to the narrow
situation of equal work. The Costa Rican Constitution of 1949, in article
57, provides that
every working person is entitled to a minimum wage, fixed periodically,
for a normal working day, which will provide for their well-being
and a decent living. Wages shall always be equal for equal work under
identical conditions of efficiency.
The majority of countries have, in addition to constitutional equality
provisions, adopted legal enactments for the general application of the
principle of equal remuneration. As early as 1976, India adopted an Act
to provide for the payment of equal remuneration to men and women workers
and for the prevention of discrimination on the grounds of sex against
women in the matter of employment. Some jurisdictions prefer to include
the equal pay provision under a general unfair discrimination provision
in their labour code, while others choose to place it in a law on wages.
Among the more recent statutes concerning wages, there are good examples
of protection against discriminatory treatment in regard to wages. For
example, the Estonian Wage Act of 26 January 1994, in section 5, provides
that
any increase or reduction of wage based on an employee's sex,
nationality, colour, race, mother tongue, social origin or status,
former activity, religion, political or other beliefs and position
with regard to compulsory military service, shall be prohibited.
A large number of modern labour codes that have general provisions on
wages contain a specific provision concerning equal remuneration.
Example
From the above examples, it can be seen that drafters are often at pains
to encapsulate the breadth of Convention No. 100's requirement of equal
remuneration for work of equal value. However, some national
laws still use narrower terms, such as same work, equal work or work
of like quality, nature or status, to compare the work of men and women.
The Convention had foreseen that the broader concept of work of equal
value might raise difficulties and, in Article 3, provides that where
such action will assist in giving effect to this wider concept, measures
shall be taken to promote objective appraisal of jobs which will evaluate
the work to be performed and give it a value which can, in turn, permit
those paying the remuneration to abide by the principle of equality.
Legal definitions can also assist in covering this wider concept. A choice
has to be made whether to be specific in the text, or to leave the annunciation
of the principle in accordance with Article 1 of Convention No. 100.
Another area in which caution is required in translating this principle
into national legislation is the definition of remuneration. Article
1 of Convention No. 100 states that the term remuneration includes
the ordinary, basic or minimum wage or salary and any additional emoluments
whatsoever payable directly or indirectly, whether in cash or in kind,
by the employer to the worker and arising out of the worker's employment.
The Venezuelan Labour Code defines wages and salary as:
Example
As noted above in the section concerning the definition of discrimination
in general, Member States of the European Union are obliged to adopt
provisions in accordance with the equality provision of the Treaty (Article
141, formerly Article 119) and the relevant case law. The French Labour
Code, as amended by Act No. 85-635 of 13 July 1983, is an example:
Example
It is worth noting that a number of national laws add an extra element
when prescribing equal remuneration by specifying that an employer shall
not reduce wages or the wage rate in order to eliminate a discriminatory
practice or to comply with the law, but should equalize upwards.
The French Labour Code, for example, added such a provision to section
L.140-4(2) following the adoption of the Act respecting equal remuneration
for men and women (Act No. 72-1143 of 22 December 1972).
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Prohibited grounds of discrimination
The ILO's principal instrument concerning discrimination in respect
of employment and occupation refers explicitly to the following seven
prohibited grounds of discrimination: race, colour, sex, religion, political
opinion, national extraction and social origin (Article 1, paragraph
1(a), of Convention No. 111). The Convention provides that each ratifying
State may include in its legal proscriptions such other grounds of discrimination
as it considers appropriate, after consultation with employers' and workers'
organizations (Article 1, paragraph 1(b)). It is thus clear that, while
it appeared desirable when the Convention was adopted back in 1958 to
enumerate the most common and disturbing grounds of discrimination, the
enumeration is not exhaustive. The possibility of declaring further grounds
to be illegal echoes the realization that discrimination may result from
any attempt to take into account factors that have nothing to do with
job requirements or personal abilities. The ILO's supervisory and policy-making
bodies have recently examined the desirability of expanding the seven
grounds listed in Convention No. 111 to include others, such as age,
disability, family responsibilities, language, sexual orientation and
state of health.10 In the context of the Follow-up
to the ILO Declaration of 1998, a number of Governments have referred
to legislation prohibiting discrimination on a wide variety of grounds,
ranging from those just mentioned to trade union membership and HIV status.
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Race, colour, national extraction and social origin
A common feature of some of these prohibited grounds of discrimination
is that they are generally linked to the existence within a country of
different ethnic groups or communities. It has been observed that there
is little difference between the criterion of race and that of colour,
unless it is that racial barriers may exist between persons of the same
colour. The term race does not have a precise scientific definition,
and the essential point is the way in which the persons concerned consider
their differences, and the attitudes resulting therefrom, in their relations
with others, particularly in the field of employment. Similar problems
often arise in the case of groups defined on the basis of language or
even regional origin or tribal association (or other ethnic or cultural
groupings), which are specifically covered by the Social
Policy (Basic Aims and Standards) Convention, 1962 (No. 117). The
United Nations Convention on the Elimination of All Forms of Racial Discrimination
refers generally to race, colour, descent and national or ethnic origin.
As for the criterion of social origin, it may also result in similar
phenomena where there exists a more or less rigid division of society
into classes or castes. In other cases, the problem arises from hierarchic
traditions or distinctions resulting from the family setting or from
the educational methods employed. The European Community Directive implementing
the principle of equal treatment between persons irrespective of racial
or ethnic origin11 does not define racial or ethnic origin.
In addition to avowedly discriminatory policies such as apartheid and
manifestations of individual prejudice, the problems that frequently
arise stem from the fact that certain social, racial or ethnic groups
do not, in practice, enjoy the same opportunities for training and for
economic and occupational advancement as other groups, for example for
geographical reasons. This problem can in part be overcome by drafting
clear legal texts banning racism and other such manifestations of discrimination
in the world of work.
A note of explanation is needed regarding the term national extraction used
in Convention No. 111. It is commonly misunderstood to mean nationality.
However, it is intended to cover possible distinctions among nationals
of a given country (for example, with reference to persons of different
foreign origin or between communities with ties to different national
cultures), but not distinctions between nationals and foreigners as such.
The position of foreign workers has also been considered to pose specific
problems and is the subject of particular provisions in the Conventions
and Recommendations concerning migrant workers (see below).
A good example of a specific law covering ethnic discrimination which
includes references to work-related inequalities comes from Sweden:
Example
Other laws can refer obliquely to the existence of racial or ethnic
groups, which need and are legally entitled to special measures in gaining
access to employment:
Example
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Sex
Discrimination based on sex is probably the most widespread form of
distinction, and is most often encountered as discrimination against
women. This is why one of the first ILO instruments on equality of rights
was the 1951 Convention (No. 100) concerning equal remuneration for men
and women workers for work of equal value, and why it is naturally one
of the seven grounds dealt with in Convention No. 111. Discrimination
linked to the reproductory function of women is usually covered by laws
protecting maternity. In the matter of access to and retention in employment,
special questions have arisen with regard to the status of married women.
In some jurisdictions, sex discrimination is therefore deemed to cover
civil status as well. The supervisory bodies of the ILO have considered
that the disqualification or exclusion of women on grounds of marriage
constitutes discrimination based on sex (in so far as it affects women
and not men). As will be seen later, marital status or family situation
as such have been dealt with in later instruments.
In setting policy and drafting legislation, it is necessary to look
carefully at the distinction between the terms sex and gender.
The latter entered into common English parlance some decades ago following
sociological research into societal values and the realization that the
more scientific term sex did not adequately respond to its findings.
For the ILO's work in this area, the distinction is explained as follows.
Existing differences between men and women are of both a biological and
a social nature. The term sex refers to biologically determined
differences, while gender refers to differences in social roles
and relations between men and women, including perceptions of sexuality.
Gender roles are learned through socialization and vary widely within
and between cultures. They can therefore be unlearned. Gender roles are
affected by age, class, race, ethnicity and religion, and by the geographical,
economic and political environment.
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Sexual harassment
A special word needs to be said about one particular form of sex discrimination,
namely sexual harassment. Only one international labour Convention specifically
prohibits sexual harassment, namely the Indigenous
and Tribal Peoples Convention, 1989 (No. 169). It specifically prohibits
sexual harassment of indigenous and tribal women. Nevertheless, there
is growing awareness of the need to take action on this subject, as demonstrated
by the consensus emerging in a number of international meetings and treaty
monitoring bodies. In its 1996 Special Survey on equality in employment
and occupation, when examining the application of Convention No. 111,
the ILO Committee of Experts listed a number of examples of sexual harassment
in employment applying to both men and women. These include: insults,
inappropriate remarks, jokes, insinuations and comments on a person's
dress, physique, age or family situation; a condescending or paternalistic
attitude with sexual implications undermining dignity; unwelcome invitations
or requests that are implicit or explicit, whether or not accompanied
by threats; lascivious looks or other gestures associated with sexuality;
and unnecessary physical contact, such as touching, caresses, pinching
or assault.
Both the 1993 Vienna Declaration and Programme of Action adopted at
the World Conference on Human Rights and the Platform for Action adopted
at the 1995 World Conference on Women (Beijing) emphasize the need to
implement legal measures to protect women from sexual harassment. Different
attempts to define the phenomenon contain many common elements. For instance,
sexual harassment was recognized as violence against women in the General
Recommendation No. 12 of 1989 of the committee overseeing the Convention
for the Elimination of All Discrimination Against Women (CEDAW). It is
defined in CEDAW's General Recommendation No. 19 of 1992 as including such
unwelcome sexually determined behaviour as physical contact and advances,
sexually coloured remarks, showing pornography and sexual demands, whether
by words or actions. Such conduct can be humiliating and may constitute
a health and safety problem.12
In drafting legislative protection against this form of discrimination,
care should be taken to cover acts in two sets of circumstances. First,
actions constitute sexual harassment when the victim has reasonable grounds
to believe that an objection would disadvantage her/him in connection
with her/his employment, including recruitment or promotion. Secondly,
actions constitute sexual harassment when they create a hostile working
environment. These two characterizations are known, respectively, as
the quid pro quo theory and the hostile working environment theory.
This development mirrors the evolution of the debate on what constitutes
sexual harassment that has occurred in recent years at the national level
in all regions of the world. The debate recognizes it as a workplace
issue. This is because the victims suffer physical and psychological
effects, such as serious forms of stress, anxiety, fatigue and depression,
which directly affect productivity and quality. Employers suffer in terms
of staff turnover, lost productivity and direct expenses, such as sick
leave, health benefits, monetary damage awards to victims and legal expenses.
Turning to legislative developments at the national level, a limited
number of countries, including Australia, Canada, New Zealand, Switzerland,
United Kingdom and United States, have endorsed both the quid pro quo
and hostile working environment theories of sexual harassment either
by statute or court decision. France has adopted only the traditional
quid pro quo definition, but this was the most important development
in Europe as the legislation was adopted on the abuse of authority and
sexual matters in employment relations and categorizes sexual harassment
as a penal offence.
Sexual harassment has been dealt with either through equal employment
opportunities and human rights legislation, labour codes, civil remedies
such as torts and negligence and, in at least one country, criminal law.
Latin American legislation either referring specifically to sexual harassment
or to unwanted behaviour amounting to such harassment is framed in terms
of unfair dismissal (Argentina, Chile, Costa Rica, Uruguay - Penal Code
-, with the 1997 Peruvian Law covering both theories). Several countries,
including Argentina, Austria, Belgium, Belize, Brazil, Chile, Costa Rica,
Dominican Republic, Finland, Germany, Ireland, New Zealand, Peru, Philippines
and Switzerland, have adopted legislation declaring sexual harassment
to be a prohibited labour practice. In the Caribbean, the model legislation
on violence against women prepared with the assistance of the Commonwealth
Secretariat includes the prohibition of sexual harassment.
Equal opportunity laws which prohibit sex discrimination in employment
and, in some cases specifically mention sexual harassment, offer the
most substantive source of protection in a number of countries, including
Australia, Canada, Denmark, Germany (Berlin), Ireland, New Zealand, Puerto
Rico, Sweden, United Kingdom and United States. Equal opportunity laws
normally protect both men and women from discrimination, including sexual
harassment if it is construed as coming under the law. In the case of
same-sex harassment, courts in the United States at the federal level
and the United Kingdom have dealt with the issue as sex discrimination.
While labour law in many countries provides significant protection against
sexual harassment (for example, in Belgium and the Dominican Republic),
in practice its impact is often confined to quid pro quo cases. The following
excerpt from Philippine legislation consists of a brief text which manages
to include both definitions in its ban on harassment, to specify a wide
range of work-related measures in which harassment is prohibited and
to place responsibility for enforcement clearly on the employer.
Example
Another example of a draft text prepared by the ILO for a member State
is as follows:
Example
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Political opinion and religion
These two prohibited grounds of discrimination may be regarded as comparable
in so far as they both apply to intellectual choices and are connected
with protection of the right to freedom of conscience as it relates to
employment. However, they also sometimes involve quite separate phenomena.
Relations between communities of different faiths may give rise to problems
similar to those which exist between racial or ethnic communities (see
above). In other cases, the problem is more one of intolerance either
in private practices or on the part of the State, such as where there
is a state religion or where the State is anti-religious, or again where
activities of a public nature are overly subject to the dictates of a
single or dominant political party.
As noted earlier, an exception to this principle is often made in relation
to religious bodies for which religious faith is an inherent requirement
of the job. Some equal opportunity laws go beyond the usual exception
to the equality principle for employment-related matters in relation
to religious bodies be extending it to employment in the private sector
in cases where religious sensitivities require that persons of one particular
faith deal with the public. The Trinidad and Tobago Equal Opportunity
Act, No. 69 of 27 October 2000, is one example. The exemption for religious
bodies is couched in the following terms:
Example
The ILO’s supervisory bodies have pointed out that protection
against discrimination based on political opinion must necessarily apply
to the expression or demonstration of such opinion, since protection
afforded for opinions alone, which are neither expressed nor demonstrated,
would be pointless. The same argument can be applied to religion and
the practice of religion. Difficult problems have nevertheless arisen
in connection with requirements which may be justified by the demands
of certain types of employment (in the civil service, for example, or
in religious institutions) or of state security (in the case of political
activities), as was seen above in connection with authorized exceptions
to the equality principle for the inherent requirements of a job.
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Other grounds
Among other prohibited grounds of discrimination in employment, some
of the most commonly encountered are trade union membership and trade
union activities (see Chapter
II particularly with regard to Article 1 of Convention No. 98).
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The situation of migrant workers
Because countries generally have special regulations governing the employment
of foreign nationals, discrimination against migrant workers tends to
be dealt with in the instruments on that subject. Equality of treatment
in the application of labour and social security legislation is called
for in a special provision of Convention No. 97 (Article 6). Broader
provisions were adopted in 1975 in Convention No. 143 and Recommendation
No. 151. As regards the promotion of equality of opportunity and treatment
in general, these standards are based on the concepts of the 1958 instruments.
They also include provisions intended to take into account the special
characteristics and needs of foreign workers (relating to linguistic,
cultural and other problems) so as to enable them to enjoy effective
and not purely formal equality. They allow restrictions on certain aspects
of the employment of foreign nationals (particularly employment in posts
connected with the interests of the State), but they limit to two years,
as a rule, any other restrictions on freedom of choice of employment
(this rule is in advance of the legislation of a number of countries,
including countries in Western Europe). Another important feature of
these standards is the fact that they specify the minimum equality of
rights which must be enjoyed even by migrant workers who are in an irregular
situation (other provisions of the Convention deal with the repression
of unlawful or clandestine practices involving migrant labour). Perhaps
because its aims are set too high for the present, Convention No. 143
has not yet been widely ratified (18 countries as of mid-2003). However,
together with Recommendation No. 151 it has clearly had a major impact
on general trends in reflection, demands and practices in this field.
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Age
Discrimination based on age has become a matter of increasing concern
in many countries in recent decades and the International Labour Conference
dealt with this subject in a special part of the Older
Workers Recommendation, 1980 (No. 162), which is designed to supplement
the 1958 instruments on this point. The Recommendation applies to all
workers who are liable to encounter difficulties in employment and occupation
because of advancement in age. It defines, in terms comparable to
those of the 1958 instruments, the measures to be taken to prevent any
discrimination in employment against older workers, having regard to
the special nature of their situation due to age, the need for the adjustment
of working conditions and the problems of access to retirement.
Does the setting of a mandatory retirement age constitute discrimination
based on age? It is interesting to note that Recommendation No. 162 addresses
this question somewhat cautiously. It recommends adoption of the principle
that retirement should be on a voluntary basis and that the age of entitlement
to old-age benefits should be made more flexible. It also recommends
that legislative and other provisions making mandatory the termination
of employment at a specified age should be examined in the light of the
principle of non-discrimination.
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Marital status, family situation and family responsibilities
These causes of discrimination, which are closely linked with the obstacles
encountered by women in the area of employment, are addressed as such
in the Workers
with Family Responsibilities Convention, 1981 (No. 156) and Recommendation
No. 165. The Conference had already adopted a Recommendation in 1965
concerning the employment of women with family responsibilities. This
was made redundant by the new standards, which relate to workers of both
sexes in accordance with the modern concept of the sharing of family
responsibilities. Under these new standards, men and women workers must
be enabled to exercise their right to obtain or engage in employment
without being subject to discrimination because of their family responsibilities
and, to the extent possible, without conflict between their employment
and family responsibilities. Various measures are recommended with
a view to avoiding direct or indirect discrimination based on
marital status, family situation or family responsibilities in the areas
of training and employment and to encourage appropriate adjustments of
working conditions (e.g. flexible working hours, parental leave), social
security, childcare services and family aid.
It should be noted that, in addition to those referred to in Convention
No. 111, Convention No. 158 indicates as causes which do not constitute
valid reasons for termination of employment marital status, family responsibilities,
pregnancy and absence from work during maternity leave (Article 5, paragraphs
(d) and (e)).
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Disability
Persons whose capacity is reduced by physical or mental handicap often
encounter discrimination even in respect of jobs which their disability
would not prevent them from performing adequately. They also need special
help in order to enjoy equality of opportunity in employment that is
adapted to their particular condition. The Vocational
Rehabilitation and Employment (Disabled Persons) Convention, 1983
(No. 159) and Recommendation
No. 168 address inter alia these causes of direct and indirect discrimination
and recommend various measures designed to ensure effective equality
of opportunity and treatment for such persons, without distinction on
grounds of sex. These standards deal in particular with the measures
of assistance and the adjustments needed in the areas of training, employment
and working conditions, as well as the encouragement to be given to employers.
They do not refer expressly to the question of the obligation to employ
workers with disabilities that has been introduced in certain countries
(and which seems generally more acceptable than quotas based on sex or
origin), but they specify that Special positive measures aimed at
effective equality of opportunity and treatment between disabled workers
and other workers shall not be regarded as discriminating against other
workers.
In addition, the more recent European
Community Directive establishing a general framework for equal treatment
in employment and occupation 13 of
27 November 2000 recalls the 1976 equal treatment Directive and specifically
refers, in particular in clause 4, to Convention No. 111. Recalling
that certain instruments, such as Directive 2000/43/EC of 29 June 2000
implementing the principle of equal treatment between persons irrespective
of racial or ethnic origin, already cover employment equality on specific
grounds, the November 2000 text states that Discrimination based
on religion or belief, disability, age or sexual orientation may undermine
the achievement of the objectives of the EC Treaty, in particular the
attainment of a high level of employment and social protection, raising
the standard of living and the quality of life, economic and social
cohesion and solidarity, and the free movement of persons. In
adding these four further grounds to the panoply of prohibited grounds
of discrimination in the European Communities, the text specifically
bans direct or indirect discrimination on these grounds. Direct discrimination
is defined as where one person is treated less favourably than another
person is, has been or would be treated in a comparable situation,
on any of the four grounds. Indirect discrimination is defined as occurring
where an apparently neutral provision, criterion or practice would
put persons having a particular religion, disability, age or sexual
orientation at a disadvantage compared to other persons unless justified
by a legitimate aim or as part of reasonable accommodation or based
on genuine occupational requirements (Article 2(2)(a) and (b)). The
concept of positive action (see above) is covered in Article 7 of the
Directive. Article 10 reflects the Community's approach to the burden
of proof by making it clear that Member States have to take measures
in accordance with their national judicial systems to ensure that,
when persons who consider themselves wronged because the principle
of equal treatment has not been applied to them, establish before a
court or other competent authority facts from which it may be presumed
there has been direct or indirect discrimination, it will then be for
the respondent to prove that there has been no breach of the principle
of equal treatment. Article 13 of the Directive is of particular interest
to the present text. Entitled Social dialogue, it requires
Member States to take adequate measures to promote dialogue between
the social partners with a view to fostering equal treatment, including
through the monitoring of workplace practices, collective agreements,
codes of conduct and through research or exchange of experiences and
good practices.
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Enforcement
Burden of proof
The burden of proof can be a significant hurdle to obtaining a just
and fair result in a case of alleged discrimination, whether indirect
or direct. An example might be a discrimination case in which the complainant
applies for a position and is rejected, allegedly for a discriminatory
reason. In such cases, information concerning the criteria for selection,
the qualifications and assessment of the various candidates for the position
usually lies mainly within the knowledge of the employer. This is particularly
true in cases of indirect discrimination when the actual criteria of
selection for a position may have been established over many years. In
many countries, the burden of proof lies with the complainant, and the
employer is not obliged to produce evidence to show that the rejection
can be explained on the basis of non-discriminatory reasons. In these
circumstances, the employer may be able to win the case simply by saying
nothing and merely challenging the inferences drawn by the complainant.
In practice, one of the most important procedural problems relating to
allegations of discrimination in employment or occupation is that the
burden of proving the discrimination lies with the complainant, which
may represent an insurmountable obstacle to obtaining 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
therefore difficult to prove. This is particularly true in the case of
indirect or systematic discrimination, and more so when the information
and records that might constitute evidence are generally held by the
person who is accused of discrimination.
In view of the difficulties experienced by claimants in gaining access
to data in equal pay cases in particular, many legislators and courts
have decided that, if the claimant can establish facts from which discrimination
may be presumed to exist, it is for the respondent to prove that the
apparent discrimination is due to objective factors unrelated to the
sex of the claimant. There has been a shift of this nature in the burden
of the proof in a large number of countries with such different legal
systems as Finland, France, Germany, Guatemala, Guyana, Italy, Netherlands,
Norway, Sweden, United Kingdom and Zimbabwe.
Example
Some countries have responded to this problem with specific legislative
provisions. For example, in Switzerland the Federal Act respecting equality
between men and women of 24 March 1995 provides (section 6) for the presumption
of the alleged discrimination as long as the person invoking the
procedure makes a plausible case. Countries such as France, Germany,
Italy, Sweden and Luxembourg have opted for similar systems in respect
of the burden of proof, again a reflection of recent European Union law-making
on this subject.
Given the usefulness of the European Union example, it is worthwhile
quoting its Directive on the subject:
The Council of the European Union, [..]
(2) Whereas the Community Charter of the Fundamental Social Rights
of Workers recognizes the importance of combating every form of discrimination,
including discrimination on grounds of sex, colour, race, opinions
and beliefs;
(3) Whereas paragraph 16 of the Community Charter of the Fundamental
Social Rights of Workers on equal treatment for men and women, provides,
inter alia, that "action should be intensified to ensure the
implementation of the principle of equality for men and women as
regards, in particular, access to employment, remuneration, working
conditions, social protection, education, vocational training and
career development”;
[..]
(8) Whereas the principle of equal treatment was stated in Article
119 of the Treaty, in Council Directive 75/117/EEC of 10 February
1975 on the approximation of the laws of the Member States relating
to the application of the principle of equal pay for men and women
and in Council Directive 76/207/EEC of 9 February 1976 on the implementation
of the principle of equal treatment for men and women as regards
access to employment, vocational training and promotion and working
conditions;
[..]
(17) Whereas plaintiffs could be deprived of any effective means
of enforcing the principle of equal treatment before the national
courts if the effect of introducing evidence of an apparent discrimination
were not to impose upon the respondent the burden of proving that
his practice is not in fact discriminatory;
(18) Whereas the Court of Justice of the European Communities
has therefore held that the rules on the burden of proof must be
adapted when there is a prima facie case of discrimination and that,
for the principle of equal treatment to be applied effectively, the
burden of proof must shift back to the respondent when evidence of
such discrimination is brought;
(19) Whereas it is all the more difficult to prove discrimination
when it is indirect; whereas it is therefore important to define
indirect discrimination;
[..]
Has adopted this Directive:
Article 1
Aim
The aim of this Directive shall be to ensure that the measures
taken by the Member States to implement the principle of equal treatment
are made more effective, in order to enable all persons who consider
themselves wronged because the principle of equal treatment has not
been applied to them to have their rights asserted by judicial process
after possible recourse to other competent bodies.
Article 2
Definitions
1. For the purposes of this Directive, the principle of equal
treatment shall mean that there shall be no discrimination whatsoever
based on sex, either directly or indirectly.
2. For purposes of the principle of equal treatment referred
to in paragraph 1, indirect discrimination shall exist where an apparently
neutral provision, criterion or practice disadvantages a substantially
higher proportion of the members of one sex unless that provision,
criterion or practice is appropriate and necessary and can be justified
by objective factors unrelated to sex.
Article 3
Scope
1. This Directive shall apply to:
(a) the situations covered by Article 119 of the Treaty and by
Directives 75/117/EEC, 76/207/EEC and, in so far as discrimination
based on sex is concerned, 92/85/EEC and 96/34/EC;
(b) any civil or administrative procedure concerning the public
or private sector which provides for means of redress under national
law pursuant to the measures referred to in (a) with the exception
of out-of-court procedures of a voluntary nature or provided for
in national law.
2. This Directive shall not apply to criminal procedures, unless
otherwise provided by the Member States.
Article 4
Burden of proof
1. Member States shall take such measures as are necessary,
in accordance with their national judicial systems, to ensure that,
when persons who consider themselves wronged because the principle
of equal treatment has not been applied to them establish, before
a court or other competent authority, facts from which it may be
presumed that there has been direct or indirect discrimination, it
shall be for the respondent to prove that there has been no breach
of the principle of equal treatment.
2. This Directive shall not prevent Member States from introducing
rules of evidence which are more favourable to plaintiffs.
3. Member States need not apply paragraph 1 to proceedings in
which it is for the court or competent body to investigate the facts
of the case.
[..]
[Council Directive No. 97/80/EC of 15 December 1997on the burden
of proof in cases of discrimination based on sex]
Countries other than Member States of the European Union have also given
prominence to addressing the imbalance between aggrieved employees and
accused employers in discrimination cases. The following example places
the responsibility of the employer to prove non-violation among the Fundamental
rules for exercising rights and fulfilling responsibilities set
out in the Labour Code:
Example
[top of the page]
Penalties
With regard to the effectiveness of sanctions, the important principle
is that the victims of discrimination should benefit from suitable remedies,
which should also have a dissuasive effect upon those who may consider
engaging in discriminatory practices. However, it should be kept in mind
that by instituting complaint procedures a worker takes both material
and moral risks. For example, legislation which includes protective provisions,
but which allows the employer in practice to terminate the employment
of a worker who has been the victim of discrimination simply through
the payment of compensation, does not provide sufficient protection.
Thought should be given to the use of penal sanctions, which may be useful
for dissuasive purposes, but in some countries should only be applied
as a last resort or safeguard. After all, preventive measures are also
necessary to address the social situations which often trigger discrimination.
It should also be noted that the nature of discrimination seems to be
changing and is increasingly indirect, which makes it harder to address
through the use of criminal penalties. Most jurisdictions appear to agree
that it is most effective to have available a wide range of possible
penalties and sanctions to apply in discrimination cases.
In Finland, the offence of discriminatory advertising (sex discrimination
in recruitment or during employment) incurs a penal sanction (in the
form of a fine). In Slovenia, it is a penal offence to violate the fundamental
rights of workers (Penal Act No. 12/77-5/90, section 86). Section 60
of the same Act makes a violation of equality of rights a penal offence
where the discrimination in question has been expressly prohibited. In
Israel, failure to comply with the Employment (Equal Opportunities) Law
of 1 April 1988 incurs penal liability, while the victim of the discrimination
also has the right to seek civil remedies (which include punitive damages).
Spanish law, under the 1991 version of the Penal Code, imposes penal
sanctions on those who commit any kind of severe discrimination in employment
on the basis of sex. The Social Infringements and Sanctions Act, 1988,
classifies as a very severe infringement any measure adopted
by an employer which imply sex discrimination.
It is just as important for the effectiveness of an appeals procedure
in the case of discrimination that there should be no ceiling on the
amount of compensation that may be awarded to a victim who wins the case.
A number of countries have gone further by also legislating for what
in North America is known as contract compliance. This proactive
element in the legislative response to promoting equality is normally
found in laws setting up affirmative action and places the requirement
on employers to either be in possession of a certificate that they are
respecting the equality policy and/or to lose government contacts or
loans if they are found to be in breach of it.
The two following examples demonstrate how developed and developing
countries use their employment law to achieve equality objectives:
Example
But many labour codes continue to include general provisions on penalties,
allowing the executive to set the level of the penalties.
Example
[top of the page]
Institutions to enforce non-discrimination and promote
equality
Labour administration bodies
Labour codes rarely specifically list promoting equality as
a function of the labour administration. Yet, in view of the fact that
the labour administration is normally entrusted with overall responsibility
for enforcing the contents of the law, in practice it plays an important
role in this respect.14
In many cases, the terms of reference of social and economic councils
and labour advisory boards are also broad enough to cover the function
of promoting equality.
[top of the page]
Specialized equality institutions
Many jurisdictions have created specialist equality bodies under general
equality laws, or even under their constitutions, not only with research
and advocacy functions, but also investigative powers and conciliation/adjudication
roles. The following example illustrates the functions of this type of
quasi-jurisdictional institutional body.
Ontario's Employment Equity Act of 1 September 1994 established the
Employment Equity Tribunal. It is responsible for settling disputes relating
to the implementation of equity in the workplace. It aims to achieve
conciliation between the parties or conducts hearings to find out whether,
in the case in point, the Act has been respected. These hearings are
not as formal as judicial proceedings, but the resulting decisions are
nevertheless binding on the parties. The Tribunal must endeavour to settle
disputes by mediation before proceeding with a hearing, and all claims
are therefore referred to a mediator. If the mediation process fails,
the dispute is then heard and, after examining the evidence and the related
legislation, the Tribunal returns its decision on the claim.
The composition of such institutions is crucial to their credibility
and effectiveness. Some recent laws highlight this. For example, the
legislation in Trinidad and Tobago provides that its Equal Opportunity
Commission is to be assisted by a panel:
Example
A good example of constitutionally created equality bodies comes from
South Africa.
Example
An interesting example from Latin America demonstrates the breadth of
powers and responsibilities that can be entrusted to a specialized equality
body by the legislation:
Example
[top of the page]
Ombuds
In the large number of countries that have established a special body
to deal with discrimination, a common administrative measure is the creation
of the Office of the Ombudsman. Finland, Hungary, Norway, Slovenia and
Spain, all have ombuds who are empowered to deal with questions of discrimination.
However, a distinction must be drawn between the authority (and possibly
the effectiveness) of an order from an ombudsman and a judicial order.
In Norway, for example, the Equality Ombudsman has permanent administrative
responsibility for the promotion of equal rights and opportunities, and
for monitoring compliance with the Equal Status Act. The Office may receive
complaints, issue recommendations (and exceptionally orders) and take
a case to the Equal Rights Board, which has limited authority to make
orders (although none at all in matters of hiring and firing). One clear
advantage of this system is that an employee who makes use of it incurs
no costs. In Finland there is a similar system, with the difference that,
at the initiative of the Equality Ombudsman, the Equality Council may
issue an injunction to stop discriminatory behaviour in violation of
the Equality Act, No. 609 of 1986.
[top of the page]
Appeals to labour courts
The United Kingdom's Equal Opportunities Commission has three general
duties: to work towards the elimination of discrimination; to promote
equality of opportunity; and to keep the functioning of the 1970 Equality
Act and 1975 Sex Discrimination Act under review. It has investigative
functions, may issue non-discrimination notices and in cases of persistent
discrimination it may ask for an injunction or request a declaration
from an employment tribunal. The Commission may also provide individual
claimants with legal assistance in proceedings before employment tribunals
and thereafter in the Employment Appeals Tribunal.
In Israel, under the Employment (Equal Opportunities) Law of 1 April
1988, women's groups are permitted to present their position in the labour
courts, although they may not themselves file claims (this can only be
done by the individual and his or her union).
In Zambia, section 108(2) of the Industrial and Labour Relations Act
of 1993 provides that any employee who has reasonable cause to believe
that she has suffered any penalty or disadvantage on the grounds of sex
may, within 30 days of its occurrence, lay a complaint before the Industrial
Relations Court. If it finds in favour of the complainant, the Court
may award damages or compensation to the complainant for loss of employment,
or make an order for re-employment or reinstatement in accordance with
the gravity of the circumstances of each case. If any person alleges
that she has been discriminated against on the grounds of sex, without
prejudice to any other available remedy, that person may apply for redress
to the High Court. The High Court may make an order, issue such writs
and give such directions as it considers appropriate for the purpose
of enforcing or securing the enforcement of protection from discrimination
on the ground of sex. A right of appeal lies from the High Court to the
Supreme Court.
The following box gives examples of national machinery to enforce equality
provisions (not including units or focal points in the Ministry of Labour):
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Australia
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Human Rights and Equal Opportunities Commission
Affirmative Action Agency
Office of the Status of Women (in the Office of the Prime Minister)
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|
Austria
|
Federal Public Service Commission for Equal Treatment
|
|
Belgium
|
Commission for Women’s Employment
|
|
Brazil
|
National Commission on the Rights of Women (CNDM)
|
|
Cameroon
|
National Commission on Human Rights and Freedoms (NCHRF)
|
|
Canada
|
Federal (and provincial) Human Rights Commission
Provincial Employment Equity Boards
|
|
Czech Republic
|
Council for Human Rights Inter-ministerial Commission for Romany
Affairs
|
|
Cyprus
|
National Committee for Women
|
|
Denmark
|
Equal Status Board
|
|
Finland
|
Council for Equality between Men and Women
Equality Ombudsman
|
|
France
|
National Council for Gender
|
|
Greece
|
Council for Equality between Men and Women
|
|
Iceland
|
Equal Status Council, Office of the Equal Opportunities Ombudsman
|
|
India
|
National Human Rights Commission
|
|
Ireland
|
Council for the Status of Women
|
|
Italy
|
Office of the Minister for Equal Opportunity
Commission for the Realization of Equality between Men and Women
(in the Office of the Prime Minister)
Commission on Women Workers' Rights of the Labour Ministry
|
|
Liechtenstein
|
National Commission for Equality between Men and Women
|
|
Lithuania
|
Office of the Equal Opportunities Ombudsman
|
|
Luxembourg
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Committee on Women's Employment
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|
Malta
|
Secretariat for Equal Status of Women
Commission for Advancement of Women
|
|
Netherlands
|
Equal Treatment Commission
|
|
New Zealand
|
Equal Employment Opportunities Trust
Human Rights Commission
|
|
Norway
|
Equal Rights Board
Equality Ombudsman
|
|
Pakistan
|
Human Rights Commission
|
|
Portugal
|
Committee for Equality in Work and Employment (CITE)
High Commission for Equality and the Family
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|
South Africa
|
Human Rights Commission
Commission for Gender Equity
Employment Equity Commission
|
|
Spain
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Institute for Women's Affairs
|
|
Sweden
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Equal Opportunities Commission
Equal Opportunities Ombudsman (Jämo)
|
|
Switzerland
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Federal Commission for Matters Relating to Women
|
|
United Kingdom
|
Equal Opportunities Commission for Sex Discrimination
Commission for Racial Equality
Industrial tribunals/employment appeal tribunals/House of Lords
|
|
United States
|
Equal Eemployment Opportunity Commission
Federal district courts
Supreme Court
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1. In addition to the information
available in this Chapter, the reader is recommended to refer to the
ILO database on Equal Employment Opportunity for Men and Women. This
database is available on CD-ROM and online (http://www.ilo.org/public/english/employment/gems/intro/eeo/.
2. As at mid-2003, a total of 159
member States of the ILO had ratified Convention No. 111 and 161 had
ratified Convention No. 100 (see Governing Body document GB.280/LILS/7,
para. 19).
3. The following Conventions (apart
from Convention No. 98) are accompanied by Recommendations which suggest
ways in which the principles contained in the principal instruments can
be implemented:
- Workers with
Family Responsibilities Convention, 1981 (No. 156) (providing
that men and women workers should have facilities and status that
allow them to harmonize work and family life);
- Convention No. 98 (which provides that there should be no discrimination
on the basis of trade union membership or activities);
- Conventions Nos. 97 and 143 (which provide, respectively, for treatment
no less favourable than national workers to be applied to migrant workers
and require a national policy to promote and guarantee equality of
opportunity and treatment in respect of employment and occupation,
social security, trade union and cultural rights and individual and
collective freedoms of persons who, as migrant workers or members of
their families, are lawfully within a territory);
- Vocational
Rehabilitation and Employment (Disabled Persons) Convention,
1983 (No. 159) (which calls for equal treatment ffor persons with
disabilities and reasonable accommodation of the workplace);
- Indigenous
and Tribal Peoples Convention, 1989 (No. 169) (which states that
indigenous and tribal peoples shall enjoy the full measure of human
rights and fundamental freedoms without hindrance or discrimination);
- Part-Time
Work Convention, 1994 (No. 175) (which makes it clear that part-time
workers shall receive the same protection as that accorded to comparable
full-time workers in respect of, inter alia, discrimination in employment
and occupation);
- Home Work
Convention, 1996 (No. 177) (which specifically provides that
equality of treatment shall be promoted in relation to organizational
rights, protection against discrimination in employment and remuneration);
- Convention No. 158 (which enumerates the grounds which may not constitute
valid reasons for dismissal, namely: race, colour, sex, marital status,
family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin);
- Employment
Policy Convention, 1964 (No. 122) (which requires an active policy
to promote full, productive and freely chosen employment in jobs
for which the worker is well suited, irrespective of race, colour,
sex, religion, political opinion, national extraction or social origin).
There are also two framework Conventions concerning aspects of training
which prohibit discrimination:
- Human Resources
Development Convention, 1975 (No. 142) (which requires that vocational
guidance and vocational training policies and programmes shall enable
all persons on an equal basis and without any discrimination whatsoever
to develop and use their capabilities for work);
- Convention No. 140 (which specifically disallows refusal of paid
educational leave on the grounds of race, colour, sex, religion, political
opinion, national extraction or social origin).
To this list could be added a number of general Conventions which mention
non-discrimination as part of overall policy aims, for example:
- Social Policy
(Basic Aims and Standards) Convention, 1962 (No. 117) (which
provides that improvement in living standards should be the principal
objective in economic development planning and that social policy
should aim to abolish all discrimination among workers in respect
of labour legislation, agreements, admission to employment, conditions
of work, wage rates, discipline and negotiation of collective agreements).
In the same vein, reference should be made to the 1977
Tripartite Declaration of Principles concerning Multinational Enterprises
and Social Policy, adopted by the Governing Body of the International
Labour Office which, while not having the same legal status as Conventions,
nevertheless carries great moral weight among member States. In paragraphs
22 to 23, it specifies that the principle of equality of opportunity
and treatment should guide multinational enterprises throughout their
operations:
Equality of opportunity and treatment
All governments should pursue policies designed to promote equality
of opportunity and treatment in employment, with a view to eliminating
any discrimination based on race, colour, sex, religion, political
opinion, national extraction or social origin.
Multinational enterprises should be guided by this general principle
throughout their operations without prejudice to the measures envisaged
in paragraph 18 or to government policies designed to correct historical
patterns of discrimination and thereby to extend equality of opportunity
and treatment in employment. Multinational enterprises should accordingly
make qualifications, skill and experience the basis for the recruitment,
placement, training and advancement of their staff at all levels.
Governments should never require or encourage multinational enterprises
to discriminate on any of the grounds mentioned in paragraph 21,
and continuing guidance from governments, where appropriate, on the
avoidance of such discrimination in employment is encouraged.
4. Council Directive 76/207/EEC of
9 February 1976.
5. ILO: Official Bulletin, Supplement
1, Vol. LXX, 1987, Series B, para. 535.
6. See International Labour Conference,
89th Session (2001), Report III(1A), p. 500 (English version).
7. See J. Faundez: Affirmation
action: International perspectives (Geneva, 1984); J.Hodges-Aeberhard
and C. Raskin: Affirmative action in the employment of ethnic minorities
and persons with disabilities (Geneva, 1994); J. Hodges-Aeberhard: Affirmative
action in employment: Recent court approaches to a difficult concept (Geneva,
1997); International Labour Review, Vol. 138, No.3, p. 247
(1999); Equality in employment and occupation, Special Survey,
International Labour Conference, 83rd Session (1996), Report III(4B),
paras. 134-141. These texts use interchangeably the terms affirmative
action and positive action, both of which are tools to achieve
the wider goal of employment equity. Some countries also use the expression
managing diversity in the workplace, which has a slightly different
emphasis to the terms derived from Convention No.111, which are used
here.
8. See
GLLAD: Working Document Series, A comparative study of the
contents of civil service statutes, by J. Hodges-Aeberhard
9. See International Labour Conference,
80th Session (1993), Report III (Part 4B), General Survey of the Reports
on the Workers with Family Responsibilities Convention (No. 156) and
Recommendation (No. 165), 1981, paras. 96-127.
10. See Special Survey, 1996, op.
cit., para. 297; and GB.279/3, Nov. 2000, para. 15 and appendix; where
the adoption of a protocol is discussed.
11. Council Directive 2000/43/EC
of 29 June 2000.
12. Compilation of general
comments and general recommendations adopted by human rights treaty
bodies, UNHCR, HRI/GEN/Rev.2, 29 March 1996, p. 115.
13. Council Directive 2000/78/EC
of 27 Nov. 2000.
14. See, for example, L. Hantrais,
M. Sireau and B. Lust (eds.): Labour administration: A powerful agent
of a policy of gender equality in employment and occupation, Labour
Administration Document No. 55-1 (ILO, Geneva, 1999); and Labour
administration, International Labour Conference, 85th Session (1997),
Report III(Part IB), para. 181.
Updated by MB. Approved by AB. Last Updated
10 December 2001.
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