Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Other comments on C111

Observation

Direct Request

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Articles 1(1)(a) and 3(c) of the Convention. Discrimination based on sex. Retirement age. The Committee recalls that it had noted, in its previous comments, 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, in March 2017, the Minister of Human Resources and Social Security pointed out during the State Council press conference that the policy of delaying retirement age is a major economic and social policy involving the fundamental interests of every people and therefore a very careful approach to formulating it will be taken. The Committee asks the Government to continue to provide information on any developments regarding steps taken with a view to setting the same retirement age for men and women.

Sexual harassment. The Committee welcomes the inclusion in the new Civil Code, which came into force on 1 January 2021, of provisions addressing sexual harassment (section 1010). Section 1010 provides that “[a] person who has been sexually harassed against his will by another person through oral words, written language, images, physical acts, or the like, has the right to request the actor to bear civil liability in accordance with law”. It also provides that “[t]he State organs, enterprises, schools, and other organizations shall take reasonable precautions, accept and hear complaints, investigate and handle cases, and take other like measures to prevent and stop sexual harassment conducted by a person through taking advantage of his position and power or a superior-subordinate relationship, and the like”. The Committee would like to draw the Government’s attention to the need to cover all forms of sexual harassment (quid pro quo and hostile work environment) committed not only by a person with authority but also by a colleague and a person with whom workers have contacts through their work (clients, suppliers, etc.). The Committee also welcomes the detailed information provided by the Government regarding the legal and practical activities organized by the All-China Women’s Federation (ACWF) to prevent and address sexual harassment, such as the formulation of policy documents, the dissemination of laws and regulations, training seminars and awareness-raising activities, including through the media, an advocacy campaign for the public, research activities and assistance support to female victims. The Committee also notes the Government’s indication in its report that the China Enterprise Confederation (CEC) suggested that the ILO strengthens the capacity building of employers’ organizations in this regard and provides more good practices in preventing sexual harassment in the workplace. Welcoming the positive legislative steps in the Civil Code, the Committee asks the Government to provide information on the manner in which it is applied in practice and interpreted by the courts, in particular if it covers in practice hostile work environment sexual harassment and sexual harassment committed without taking advantage of one’s hierarchical position. In addition, recalling the obligation of employers to prevent and prohibit sexual harassment against female workers at the workplace in section 11 of the Special Provisions on Labour Protection of Female Workers as well as the obligations of employers pursuant to section 1010 of the Civil Code, the Committee asks the Government to provide examples of measures taken in practice by employers in this regard. The Committee also asks the Government to include a clear and comprehensive definition of sexual harassment to ensure that it covers both quid pro quo and hostile work environment harassment and to consider expanding the protection against sexual harassment at the workplace to male workers. It further asks the Government to provide information on any cases of sexual harassment dealt with by the competent authorities, including on their outcome (sanctions imposed and remedies granted).

Addressing sex-based discrimination in recruitment practices, including job advertisements. The Committee welcomes the adoption of the Circular on “Further Regulating Recruitment Practices to Promote Women Employment” issued by nine stakeholders including the Ministry of Human Resources and Social Security in 2019, which prohibits : (1) companies from prioritizing any candidate or rejecting any application based on sex; and (2) recruiters from asking women applying for a job about their marital status or any pregnancy plans, requiring new employees to take pregnancy tests, or imposing pregnancy restrictions during employment. The Committee also notes that the circular provides for fines for employers who publish sexist job advertisements and the revocation of work permits of recruitment agencies that do the same. The Committee asks the Government to provide information on the application in practice of the 2019 Circular, in particular on the number of cases of discrimination dealt with by the competent authorities and their outcome (fines imposed and work permit revocations) and on its impact on the elimination of discriminatory job advertisements.

Pregnancy and maternity. The Committee notes that the Government refers to the legal framework in place for maternity protection and that the above Circular addresses the issue of discrimination based on pregnancy at the recruitment stage. Recalling that such discrimination occurs usually in practice, despite the existence of a solid legal framework, the Committee asks the Government to provide information on the enforcement of the provisions protecting workers against discrimination based on pregnancy or maternity, during recruitment but also employment, as well as information on the number and nature of cases of such discrimination dealt with by the competent authorities. It further asks the Government to consider undertaking awareness-raising activities to address gender stereotypes and discrimination faced by women based on the fact that they bear children and are seen as primary caregivers.

Article 1(1)(b). Additional grounds of discrimination. HIV status, hepatitis B. The Committee notes the Government’s indication that the Departments of human resources and social security at all levels actively have carried out law enforcement inspection activities, and severely punished various violations of labour security such as hepatitis B discrimination. It further notes that, on 19 January 2017, the General Office of the State Council issued the Action Plan for China’s Containment and Prevention of AIDS during the 13th Five-Year Plan Period, which aims inter alia at strengthening the protection of the legal rights and interests of people living with HIV and AIDS, including in education and employment. The Committee requests the Government to provide details on the anti-discrimination provisions of the Action Plan adopted in 2017 as regards vocational education and training and employment, and their application in practice. It also requests the Government to provide information on cases of discrimination based on HIV status and on hepatitis B, as well as discrimination based on other infectious diseases, dealt with by the competent authorities, including sanctions imposed and remedies granted.

Articles 2 and 3. Equality of opportunity and treatment between women and men. The Committee notes the Government’s data in its report on the application of the Equal Remuneration Convention, 1951 (No. 100) that in total, in 2016, women represented 36.4 per cent of the workers (35.5 in agriculture, etc., 26.1 in transportation, 31.5 in Information Technology services and 39.1 in science). The Committee notes the Government’s statement that it attaches great importance to women’s employment and entrepreneurship and has issued a series of laws including the Labour Law (1994), the Employment Promotion Law (2007), and the Law on the Protection of Women’s Rights and Interests (revised 2005) in this regard. The Government also indicates that it has taken policy measures to : (1) improve general active employment policies, through vocational training, to promote the employment of all workers, including women; (2) enhance tailored employment and entrepreneurship services such as special job fairs, policy consultation, career planning, and job introduction for female job seekers, “one stop” entrepreneurship services; (3) promote the employment for critical groups, with a priority on university graduates; (4) promote women’s employment through developing industries such as hand knitting and the domestic service industry; and (5) protect effectively women’s legal rights and interests, through the strengthening of labour security inspection. The Committee notes the Government’s indications that the ACWF launched the “Women’s Poverty Alleviation Action” in poverty-stricken areas in December 2015, and that the Government adopted measures to : (1): promote women’s active participation in industries as a way to get rid of poverty, such as the farming and breeding industry, traditional handicraft industry, rural tourism, housekeeping services and rural e-commerce; (2) improve poor women’s participation in all types of inclusive training to ensure equitable access to educational trainings and inclusive policy benefits; and (3) develop fiscal interest subsidies to small loans. The Government also indicates that the women’s federations promote the engagement of poor women in handcraft work closely related to their regional characteristics, cultural background and ethnicity to increase income, such as embroidery, tailoring and weaving, and that with the support from female officers, talents and leaders working in pilot women work station on modern agricultural technology, hand-woven working base, and three-eight green engineering base, who act as role models in growing rich. In addition, the ACWF facilitates the development of local industry, such as farming, aquaculture, processing of agricultural products, hand-woven, rural e-commerce and rural tourism. The Committee also notes the detailed information provided in the Comprehensive National-Level Review Report on the Implementation of the Beijing Declaration and Platform for Action, 1995 (Beijing+25) on the priorities, achievements, challenges and setbacks regarding gender equality. The Committee notes that, in 2019, an ILO-UN Women seminar on Gender Equality and the Future of Work was held in China and addressed the progress and challenges of gender equality in the country, equal opportunity and treatment, equal pay for work of equal value and women’s empowerment, balancing work and family responsibilities and the elimination of violence and harassment in the world of work. The Committee notes that, in April 2019, the General Office of the State Council issued “Guidelines on Promoting the Development of Care Services for Infants under 3 Year-old”, which aimed to help mothers having young children. It further notes the adoption in September 2021, along with the “China National Program for Child Development”, of the China National Program for Women’s Development (2021–2030) which provides for 75 main goals and 93 supportive measures and covers 8 areas including health, education and the economy, with family planning being a newly-added priority area for both women and children. Welcoming these developments, the Committee would like to draw the Government’s attention on the importance to ensure that measures taken to promote gender equality do not in practice reflect the assumption that the main responsibility for family care lies with women or excludes men from certain rights and benefits, and therefore do not reinforce nor prolong stereotypes regarding the roles of women and men in the family and in society. The Committee asks the Government to provide detailed information on the practical measures taken within this legal and policy framework on gender equality, and their results on increasing and improving women’s employment and gender equality, in particular with a view to addressing effectively : (i) stereotyped assumptions regarding women’s aspirations and capabilities, their suitability for certain jobs or their interest or availability for full-time jobs; (ii) vertical and horizontal gender occupational segregation, including in vocational education and training; and (iii) any obstacles encountered by both men and women workers to reconcile work and family responsibilities. The Committee also asks the Government to continue to provide information on steps taken to ensure that men and women have equal opportunities in employment and occupation and are treated equally during employment and the various occupations, in all sectors of the economy and in rural and urban areas.

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

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

Article 5. Protective measures. Further to its request, the Committee notes the Government’s statement that the “Scope of Prohibited Labour for Female Employees” annexed to the Special Provisions on the Labour Protection of Female Employees promulgated in 2012, clearly covers four types of prohibited labour for female workers, inter alia labour during pregnancy and lactation, and does not apply to a larger scope in practice. The Government further indicates that, given the Committee’s comment that over-protective measures beyond necessary maternal needs may exert negative impacts on the employment and career prospects of women, it is currently conducting research on the implication of female workers’ maternity leave on their interests. Welcoming this information, the Committee asks the Government to provide information on the manner in which it ensures that, in practice, measures taken to protect women in employment and occupation, pursuant to the Special Provisions on the Labour Protection of Female Employees of 2012 are strictly limited to the protection of maternity in the sense of ILO Conventions – i.e. during pregnancy or childbirth and its consequences or nursing.

Awareness-raising. Monitoring and enforcement. The Committee notes the Government’s indication that, in cooperation with the ILO, the China Enterprise Confederation (CEC) has been conducting training activities in Hebei Province, with a view to increase compliance of employers with labour laws and regulations, since 2015, and promotes the implementation of the Convention in six areas, including enterprises management, recruitment of employees, training and promotion, protection of female workers’ interests, prevention of sexual harassment in the workplace, diversity in the workplace and work–family balance. The Committee notes the Government’s indication that the Ministry of Human Resources and Social Security (MOHRSS) has conducted special inspections for a number of years on the issue of the payment to migrant workers and compliance of employers to certain laws and regulations on employment and social insurance; and has taken greater actions against involvement of discriminatory information in recruiting advertisements, with the intention of upholding workers’ legitimate interests. The MOHRSS has also made more efforts to ensure the full coverage of internet management, with active promotion of the off-site investigation, provincial coordination, and online operation for cases and has strengthened the capacity building of the information system for the supervision and management; and streamlined the process of data collection and standards. The Committee notes, however, that once again no information has been provided concerning the number and nature of cases of discrimination in employment and occupation submitted to relevant authorities. The Committee asks the Government to continue providing information on awareness raising activities undertaken by the public authorities and the social partners in relation to all aspects of non-discrimination and equality in employment and occupation. It asks the Government to provide information on the procedure for workers to bring court cases and make requests for mediation or arbitration of labour disputes relating to discrimination and any obstacles they encounter. The Committee urges once again 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.

[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]