Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the communication of the National Forum of Trade Unions of Ukraine (NFTU), received on 30 April 2010, submitting comments on the draft Labour Code, and the Government’s reply received on 1 October 2010.

Discrimination on the basis of race, colour or national extraction. The Committee notes with regret that, despite the Committee’s repeated requests, the Government’s report includes no information on the measures taken or envisaged to ensure and promote equality of opportunity and treatment in employment and occupation on the grounds of race, colour and national extraction, and particularly the measures taken in respect of the Crimean Tartars and the Roma. The Committee reminds the Government of its obligation to adopt and implement a policy to promote equality in employment and occupation with a view to eliminating discrimination on all the grounds referred to in the Convention, including any discrimination on grounds of race, colour or national extraction in employment faced by groups and communities such as the Crimean Tartars and the Roma. In this context, the Committee recalls that the United Nations Committee on the Elimination of Racial Discrimination (CERD) in its concluding observations of 17 August 2006 expressed concerns over reports indicating that many Roma are deprived of their right to equal access to employment and education. The Crimean Tartars reportedly remain under-represented in the public service of the Autonomous Republic of Crimea and many of them have been excluded from the agrarian land privatization process (CERD/C/UKR/CO/18, paragraphs 11, 14 and 15). Similar issues were raised more recently by the European Commission against Racism and Intolerance in its third report on the Ukraine (CRI(2008)4, of 12 February 2008). The Committee urges the Government to provide full information on the measures taken to promote and ensure equality of opportunity and treatment in employment and occupation of the Crimean Tartars and the Roma. It also requests the Government to provide statistical data indicating the extent to which members of both communities participate in vocational training, as well as in public and private employment.

Discrimination based on sex. In its previous observation, the Committee requested the Government to provide information on the progress made in implementing the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men, including information on any examples of positive action taken by employers, and the activities carried out by the different components of the national machinery to promote gender equality at work. The Committee also requested information on the number, nature and outcome of any appeals concerning employment discrimination filed under section 22 of the Law. Noting that the Government’s report, although containing general explanations regarding the applicable legislation, does not reply to these requests for information, the Committee urges the Government to provide this information in its next report. While noting the information provided regarding the rates of economic activity of men and women and regarding the number of women who have benefited from the services provided by the State Employment Service, the Committee reiterates its request to the Government to provide detailed statistical information on the participation of men and women in the different jobs, occupations and sectors of the economy, including data on women’s employment in managerial and decision-making positions (private and public sectors).

Sexual harassment. The Committee recalls its previous comments regarding section 17 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men under which the employer must take measures to prevent sexual harassment, which is defined as “actions of a sexual nature, expressed verbally (threats, intimidation, indecent remarks) or physically (touching, slapping), which humiliate or insult persons who are in a position of subordination in terms of their employment, official, material or other status” (section 1). As noted previously, this definition would not appear to cover situations where conduct of a sexual nature creates a hostile working environment, irrespective of whether there is a relationship of subordination between the harasser and the victim. The Committee notes that following a high-level round table discussion organized in May 2010 by the Parliamentary Committee on Social Policy and Labour with the support of the project “Gender Equality in the World of Work in Ukraine”, co-funded by the European Union (EU) and the International Labour Office (ILO), a tripartite working group was established to elaborate amendments to the equality legislation, including provisions expanding the definition of sexual harassment and provisions relating to its prevention, including at the workplace. The Committee therefore requests the Government to take the necessary steps to expand the definition of sexual harassment to extend beyond relationships of subordination and to cover hostile environment sexual harassment, and to indicate the progress made in this regard. The Committee further reiterates its request to the Government to provide information on any complaints of sexual harassment received and addressed by the competent authorities.

Cooperation with employers’ and workers’ organizations. The Committee recalls that section 18 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men recognizes that collective bargaining should contribute to the promotion of gender equality at work by providing that collective agreements and contracts should contain provisions promoting gender equality, including time lines for the implementation of such provisions. In this context, the Committee notes that the EU–ILO technical cooperation project on gender equality in Ukraine seeks, among other things, to enable the social partners to promote, implement and monitor relevant international commitments and national laws and policies. Noting that the Government’s report does not reply to the previous comments regarding this matter, the Committee once again requests the Government to provide information on the implementation of section 18 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men, including examples of collective agreements that promote and ensure gender equality in accordance with the Law. Please indicate any measures taken to seek the collaboration of employers’ and workers’ organizations on this matter, and any measures taken to support the social partners in relation to gender equality matters.

National policy on gender equality. The Committee notes that the round table organized by the Parliamentary Committee on Social Policy and Labour in May 2010 resulted in the adoption of a series of recommendations, including providing a clearer definition of gender-based discrimination covering both direct and indirect discrimination, collecting and analysing appropriate data disaggregated by sex on employment and occupation, developing a National Programme on Gender Equality, conducting large-scale public awareness-raising activities on gender equality and the need to eliminate gender-based stereotypes, and taking measures to strengthen the capacity of the enforcement bodies to identify and eliminate gender discrimination. The Committee requests the Government to indicate the measures taken to follow up the recommendations of the Parliamentary Committee on Social Policy and Labour.

Draft Labour Code. The Committee notes that the NFTU refers to the need to include the grounds of gender and conditions of birth in the draft provisions prohibiting discrimination, the need for provisions prohibiting workplace discrimination by companies, as well as procedures of investigation and sanctions for companies allowing such discrimination; and the prohibition of HIV/AIDS testing in compulsory medical examinations. The NFTU also considers restrictions on women’s rights to work in hard and dangerous working conditions, if they are physically fit to do so, as being unfair. The Committee notes the Government’s reply, received on 1 October 2010, which cites section 4 of the draft Labour Code. The Committee asks the Government to take into account the concerns raised by the NFTU in the context of the drafting process and to ensure that the new Labour Code provides effective protection against direct and indirect discrimination on all the grounds covered by the Convention and with respect to all aspects of employment and occupation. The Government is also requested to ensure that restrictions on women’s employment are strictly related to maternity, and not based on stereotyped presumptions regarding the type of employment suitable for women, and to provide information on any developments with respect to the status of the adoption of the draft Labour Code.