Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - China (Ratification: 2006)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. The Committee previously noted the legislative provisions prohibiting discrimination in employment, including the Labour Law of 1994, the Employment Promotion Law of 2007, the Law on the Protection of the Rights and Interests of Women of 1996, and the Regulation on Employment Service and Employment Management of 2008. The Committee noted in particular that section 12 of the Labour Law of 1994 and section 3 of the Employment Promotion Law of 2007 provided that “workers seeking employment shall not be discriminated against in employment on the basis of factors such as ethnicity, race, sex or religious belief”, omitting protection against discrimination on the basis of colour, political opinion, national extraction and social origin. The Committee notes that the Government’s report does not contain any information on how workers are protected in practice against discrimination based on colour, national extraction, social origin or political opinion in all aspects of employment. The Committee emphasizes that when legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction and social origin (2012 General Survey on the fundamental Conventions, paragraph 854). The Committee urges the Government to provide specific information on how workers are protected in practice against discrimination at all stages of employment and occupation including on the grounds of colour, national extraction, social origin and political opinion, and whether any steps are being taken or envisaged to amend the existing legislation to prohibit discrimination expressly on these grounds.

Definition of discrimination. Given the absence of a definition of discrimination in the relevant laws or regulations, the Committee has been requesting the Government to indicate how workers are protected against indirect discrimination in employment and occupation. Noting that the Government’s report does not contain further information in this regard, the Committee once again emphasizes that the Convention covers both direct and indirect discrimination, which are distinct forms of discrimination. Indirect discrimination occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of particular characteristics (2012 General Survey, paragraphs 743 and 745). The Committee reiterates its request to the Government to provide information on how workers are protected in practice against indirect discrimination in employment and occupation, and whether any steps are being taken or envisaged to include a definition of discrimination in the relevant laws and regulations, with a view to ensuring that workers are protected against both direct and indirect discrimination.

Articles 1(1)(a) and 3. Discrimination based on sex. Retirement age. In its previous comments, the Committee noted the Government’s indication that the statutory retirement age is 60 for men, and 50 for women generally but 55 for female civil servants. The Committee notes the Government’s indication that it has issued the Circular on the retirement age of women cadres working for the government organs and people’s organizations whose level are chief of the department at county level and women professionals and technicians with senior professional titles, which entered into force in March 2015, stipulating that women in senior management may retire at 60 years of age. The Committee also notes that the Third Plenary Session of the 18th Communist Party of China (CPC) Central Committee adopted “The Decision on Major Issues Concerning Comprehensively Deepening Reforms” in 2013, in which the Central Committee decided to “stipulate policies for gradually suspending the retirement age of employees” in the near future (paragraph 45). The Committee also notes from the ILO publication Women in the labour market in China (2015) that one third of the female population will be above 50 years of age by 2020, which means that, under the current retirement scheme, one out of three women will have retired and rely on a pension in the near future (page 26). The Committee asks the Government to continue to provide information on the steps taken with a view to setting the same retirement age for men and women, including further measures taken to implement the Circular on the retirement age of women of March 2015 and the Decision taken by the CPC Central Committee in 2013 to gradually suspend the retirement age for employees.

Sexual harassment. The Committee recalls that section 11 of the Special Provisions on Labour Protection of Female Workers, which came into force on 18 April 2012, includes an obligation on the employer to prevent and prohibit sexual harassment against female workers at the workplace. The Committee notes that the Government provides no further information in this regard, but that the United Nations Committee on Economic Social and Cultural Rights noted in its concluding observations of June 2014 that sexual harassment in the workplace still occurred frequently (E/C.12/CHN/CO/2, 13 June 2014, paragraph 21). The Committee once again asks the Government to provide information on the practical application of section 11 of the Special Provisions on Labour Protection of Female Workers of 2012, as well as section 40 of the Law on the Protection of Women’s Rights and Interests of 1996, including information on any cases of sexual harassment dealt with by the competent authorities. The Committee reiterates its request to the Government to indicate if any consideration is being given to expanding protection against sexual harassment at the workplace to male workers, as well as to including a definition of sexual harassment to ensure that it covers both quid pro quo and hostile environment harassment.

Pregnancy and maternity. The Committee notes the Government’s indication that the Labour Contract Law of 2007 and the Special Rules on the Labour Protection of Female Employees of 2012 regulate labour contracts and wages of female employees during their periods of pregnancy, childbirth and lactation. The Government also indicates that pursuant to section 45 of the Labour Contract Law, labour contracts that reach their expiration during a female employee’s pregnancy, postnatal or breastfeeding periods are to be extended until the end of such periods, at which point they may be terminated. While welcoming this information, the Committee recalls that maternity protection is a precondition for gender equality and for non-discrimination in employment and occupation, and asks the Government to provide specific information on the measures taken to address employment discrimination faced by women based on the fact that they bear children and are seen as primary caregivers, in all stages of employment, including recruitment and promotion. Please also provide information on any measures taken to reconcile work and family responsibilities, targeting both men and women on an equal footing.

Discrimination based on social origin. With reference to its previous comments regarding the reform of the household registration system and the privileges attached to it, the Committee recalls that section 31 of the Employment Promotion Law provides that rural workers seeking employment in urban areas shall enjoy the same labour rights as urban workers and prohibits discriminatory restrictions against them. The Committee refers to its 2015 observation concerning the Employment Policy Convention, 1964 (No. 122), in which it noted the employment measures taken, including improvements to the equal employment system in rural and urban areas, as well as the strengthening of employment services and supportive policies with respect to rural migrant workers. It also notes from the Government’s report on Convention No. 122 the specific results achieved through the Trinity Working Mode and the “Spring Breeze Action” to promote the employment of migrant rural workers. Welcoming these measures, the Committee requests the Government to provide information on specific measures taken to ensure the effective enforcement of section 31 of the Employment Promotion Law, including with regard to the regulations and policies referred to by the Government to eliminate policy barriers to the employment of migrant rural workers. The Committee also reiterates its request to the Government to collect and provide information regarding the number of cases of discrimination against workers from rural areas that have been dealt with by the competent authorities and the results thereof.

Article 1(1)(b). Additional grounds of discrimination. HIV/AIDS, hepatitis B. In its previous comments, the Committee requested information on the practical application of section 19(2) of the Regulation on Employment Service and Employment Management of 2008 and a “Notice on Further Regulating the Medical Examination for Enrolment and Employment to Safeguard the HBsAg Carriers’ Rights to Education and Employment”, promulgated in February 2010, which provide that employers shall not conduct tests for hepatitis B viral markers in medical examinations for employment. The Committee notes the Government’s indication that the provisions on employment services and employment management provide that no employer may refuse employment because a worker carries a pathogen of infectious diseases such as HIV/AIDS and hepatitis B, unless the work easily causes the spreading of the disease as defined under state laws, regulations, or provisions by the health administrative department under the State Council. Furthermore, fines and compensatory damages are paid by the employer to the employee in cases of violation. The Committee requests the Government to provide additional information on the practical application of the Notice on Further Regulating the Medical Examination for Enrolment and Employment to Safeguard the HBsAg Carriers’ Rights to Education and Employment of 2010, in particular any cases of violations detected by or reported to the competent authorities. It also asks the Government to provide information on any other measures taken to address discrimination based on HIV and AIDS, hepatitis B and other infectious diseases, including by the Institutions for Labour Supervision of the Ministry of Human Resources and Social Security.

Article 2. Equality of opportunity and treatment between women and men. The Committee notes from the ILO publication Women in the labour market in China (2015) that the labour force participation rate of women has decreased between 1990 and 2013, from 72.7 to 63.9 per cent, and that the difference between men and women in this regard has widened from 12.1 per cent in 1990 to 14.4 per cent in 2013, along with the observation that this can be in part attributed to the elimination of positions in the public sector (pages 5 and 8). The Committee also notes from the same publication that the second largest decline in participation rates has been witnessed for women aged 25 to 34 (following school-aged girls), which the publication attributes to reigning social beliefs about women and their place in society, as well as decreased institutional support provided to workers with family responsibilities for childcare (page 6). The ILO publication observes that sectorial and occupational gender segregation exists, with more women than men engaged in low productivity agriculture (44.5 per cent of women compared to 33 per cent of men in 2012), and more men than women employed as “unit heads” (only 25 per cent of women were employed as “unit heads”) as of 2012 (page 11). The Committee notes the Government’s indication that the All-China Women’s Federation offers advice to promote gender equality in employment in the meetings of the National People’s Congress and the Chinese People’s Political Consultative Conference; implements measures to improve the capacity of young female entrepreneurship and employment through mentorships, small-sum guaranteed loans, and financial interest subsidies; and conducts research regarding the situation of gender discrimination in employment. The Committee also notes that paragraphs 42 and 43 of the Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform, adapted at the 3rd Plenary Session of the 18th CPC Central Committee on November 16, 2013, states that a modern vocational educational system will be established and that “all institutional barriers and employment discrimination that affect equal employment, such as … gender [will be removed]”. The Committee requests the Government to continue to provide information on specific measures taken to promote and ensure women’s equality of opportunity and treatment in employment and occupation in the private and public sectors, and in rural and urban areas, including those taken as a result of the decision of the CPC Central Committee in 2013. The Committee also asks the Government to provide detailed information of the results achieved through measures taken to address horizontal and vertical occupational gender segregation, including through vocational training, employment promotion, and small-sum secured loans. Please also provide updated statistical information on the participation of women and men in employment in different sectors and occupations.

Equality of opportunity and treatment of ethnic minorities. The Committee recalls that section 28 of the Employment Promotion Law of 2007 and section 17 of the Regulation on Employment Service and Employment Management of 2008 provide that an employer shall give appropriate consideration to workers of ethnic minorities in recruitment, and that the Law on Regional Ethnic Autonomy of 1984 seeks to promote training, education and access to employment for men and women of local ethnic minorities in the organs of self-government in autonomous areas. The Committee notes that the Government refers to section 18 of the Law on Regional Ethnic Autonomy of 1984 which provides that self-government organs “should, whenever possible” recruit from candidates “from among citizens of the nationality exercising regional autonomy and of other minority nationalities in the area”, and to section 67 which stipulates that “enterprises and institutions affiliated to state organs at higher levels but located in national autonomous areas shall give priority to local minority nationalities when recruiting personnel in accordance with the regulations of the State”. The Government further provides information on various policy measures including vocational training, employment assistance and information services, employment promotion of the rural labour force, promotion of employment within central enterprises, and the updating of curricula of educational institutions in regions with high minority populations. The Government also indicates that measures have been taken to promote the employment of college graduates in three ethnic minority areas, and that Notice No. 5 on Strengthening Employment Information Service for College Graduates has been issued by the Office of Teaching in 2013 in this regard. The Committee notes, however, that the Government does not provide statistical data on the employment of ethnic minorities as was previously requested by the Committee. The Committee asks the Government to continue to provide information on the practical application of the Employment Promotion Law of 2007 and the Law on Regional Ethnic Autonomy of 1984 in ensuring equality of opportunity and treatment of ethnic minorities in employment and occupation, and on the results achieved by such action taken in accordance with Article 3(f) of the Convention. Please also provide information on the current situation of various ethnic minorities in employment and occupation inside and outside the autonomous regions, including employment data disaggregated by sex and ethnicity.

Article 5. Protective measures. The Committee previously noted that provisions in a number of laws and regulations restrict the work that women can undertake, in particular: section 26 of the Law on the Protection of Women’s Rights and Interests of 1996, which provides that women shall not be assigned to any work or physical labour not suited to them; section 13 of the Labour Law of 1994, section 27 of the Employment Promotion Law of 2007, section 3 of the Regulation on the Administration of Human Resources Markets, section 16 of the Regulation on Employment Service and Employment Administration, which allow the State to determine the types of work and posts that are not suitable for women; and section 59 of the Labour Law of 1994 prohibits women working in mines or undertaking physically intense work as determined by the State, or “other work that female workers should avoid”. The Committee notes that the Government reiterates that the Special Provisions on Labour Protection of Female Workers of 2012 has repealed the Provisions on Labour Protection of Female Workers of 1988. However, the Government also indicates that while the new regulation narrows the range of work that is restricted for married women workers and workers on menstrual periods, the scope of prohibited work for women has expanded. The Committee again draws the Government’s attention to the detrimental effect such restrictions can have on the equality of opportunity and treatment of women in employment and occupation. The Committee emphasizes that protective measures that go beyond protecting maternity in the strict sense, but rather are aimed at protecting women generally because of their sex or gender, are contrary to the Convention and constitute obstacles to the recruitment and employment of women (2012 General Survey, paragraph 838). The Committee asks the Government to provide information on the practical implementation of laws and regulations, including the Special Provisions on Labour Protection of Female Workers of 2012, that restrict the work that women can undertake, including measures taken or envisaged to ensure that any protective measures are strictly limited to maternity protection. Please also provide information on any measures taken pursuant to section 25 of the Employment Promotion Law of 2007 to support and aid women workers who have difficulties getting jobs.

Monitoring and enforcement. The Committee notes the Government’s indication that the Ministry of Human Resources and Social Security, the Ministry of Industry and Commerce, and the Ministry of Public Security have jointly launched a nationwide special action to inquire, clean up and address employment discrimination. With regard to labour security inspection, the Committee notes the Government’s indication that there is an imbalance in the degree of development between regions, but that the grid and network management of national labour security inspection is being promoted to strengthen this function. The Government further indicates that the coverage rate of the grid and network management of national labour security inspection over prefecture-level cities has reached 87 per cent as of the end of 2014. The Committee notes, however, that no information has been provided concerning the number of cases submitted to relevant authorities involving violations of the principle of the Convention. The Committee asks the Government to provide additional information on the enforcement of the non-discrimination provisions, including the possibility of workers to bring court cases and make requests for mediation or arbitration of labour disputes relating to discrimination. It also asks the Government to provide information on measures taken under the nationwide special action by the Ministries of Human Resources and Social Security, Industry and Commerce, and Public Security, as well as those taken under the framework of the grid and network management of national labour security supervision, in order to strengthen the capacity of the labour inspectorate to detect and address violations relating to the principle of the Convention, and the results achieved. The Committee urges the Government to provide information on the number, nature and outcome of complaints and cases of discrimination, originating from both the public and the private sectors, dealt with by the people’s courts and other dispute resolution mechanisms, including information on the remedies granted and sanctions imposed.