Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. The Committee notes with satisfaction the adoption, following receipt of technical assistance from the Office, of Ministry of Labour and Social Security resolution No. 3716 of 3 November 1994 which restricts the requirement of a pregnancy test for obtaining employment in both the private and public sectors to employment or occupations where pregnancies might be at risk. It also notes with satisfaction the adoption of resolution No. 3941 of 24 November 1994 which specifies that such employment and occupations shall be only those listed as "high risk" in Decrees Nos. 1281 and 1835 of 1994. It also notes with interest the copy of the Ministry of Labour's circular, addressed to all regional labour directors and labour inspectors, recalling the importance of verifying compliance with the constitutional provisions on equality of opportunity between men and women, including the elimination of sex-based discrimination and sexual harassment.

2. The Committee also notes with satisfaction the Constitutional Court ruling of 21 April 1994 which declares unconstitutional the listing, by virtue of section 1 of Act No. 61 of 1987 on the career public service, of certain posts as exceptions to the career public service. The ruling refers, among others, to those exceptions raised in previous observations as being potentially discriminatory since they left a large number of general posts classified as "posts of free appointment and dismissal", namely subsection (j) concerning part-time posts; and subsections (f), (g) and (i) concerning the General Directorates of Customs and Taxes and public employees of state-run industrial and commercial establishments which were held to be constitutional subject to the condition that the posts do not, by their content, correspond to public career posts or that they refer to directorate-level posts or posts of confidence. According to the Government's report, this ruling clarifies that "posts of free appointment and dismissal" are only those at the directorate level or, exceptionally, those at other levels involving positions of trust. The effect of the ruling is that these posts have become posts of the career public service, and only those limited exceptions allowed by Article 1, paragraph 2 of the Convention remain subject to free appointment and dismissal.

3. With regard to its previous request for copies of any texts regulating access to and conditions of employment in certain posts excluded from the career public service, the Committee notes with interest Decree No. 1221 of 28 June 1993 concerning capacity building in the national public service and Decree No. 1222 of the same date (amended by Decrees Nos. 256 and 805 of 28 January and 21 April 1994) prescribing the rules for selection, promotion and evaluations in the career public service, which now cover those posts deemed to be within the career public service following the above-mentioned Constitutional Court ruling.

4. These texts have been adopted by virtue of new legislation which also has an impact on the Committee's previous observation. Act No. 27/1992, which entered into force on 3 February 1993, to amend the Career Public Service Act No. 61 of 1987 - and Decree No. 256 mentioned above - state that access to and capacity building and promotion within the public service shall take place through systems which allow for democratic participation in a context of equality of opportunities. According to section 2, the Act also extends the career public service system to those posts previously not covered, such as employees of territorial administrations. In addition, the Committee notes with satisfaction implementing Decree No. 1224 of 28 July 1993, which prescribes the steps to be taken by such state employees for entry into the career public service.