Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the Government’s first report and the extensive legislation attached. The Committee encourages the Government to continue its efforts to promote equality of opportunity and treatment in employment and occupation and raises the following points.

Article 1(1)(a) and (b) of the Convention. Prohibition of discrimination. The Committee notes that section 6 of the Labour Relations Law contains a general prohibition of discrimination on the grounds enshrined in Article 1(1)(a) of the Convention, as well as on additional grounds (age, health, disability, sexual orientation and membership in trade unions) as envisaged in Article 1(1)(b). The Committee further notes that section 7 of the Law expressly extends the prohibition of discrimination to both direct and indirect discrimination. Pursuant to section 4(3) of the Law, the provisions regulating, among other things, working hours, daily and annual vacations, minimum salary and protection and safety at work shall also be applied to employees that “concluded the contract in compliance with foreign law and are posted by a foreign employer to perform temporary work on the territory of the Republic of Macedonia”. Pursuant to sections 7(5) and 12 of the Law, discriminatory provisions of employment contracts or collective agreements are null and void. In case of dispute, the Committee notes that section 11 places the burden to prove the absence of any type of discrimination on the employer. Section 3 of the Law on Equal Opportunities of Women and Men prohibits discrimination based on gender in the fields of employment, labour, education, social security, culture and sport; it establishes a procedure to determine unequal treatment, which also places the burden of proof on the other party once facts are presented from which it could be assumed that discrimination had occurred (section 39). The Committee also notes that article 137 of the Criminal Code punishes with imprisonment any infringement of the principle of equality of rights of citizens, including rights provided by the Constitution, by law or by ratified international covenant, for reasons of “gender, race, colour of skin, national and social origin, political and religious belief, wealth and social position, language and other personal characteristics”. The Committee requests the Government to provide information on the following matters:

(a)  the practical application of sections 6, 7 and 12 of the Labour Relations Law, section 3 of the Law on Equal Opportunities of Women and Men, and article 137 of the Criminal Code, including relevant judicial and administrative decisions;

(b)  how the workers referred to in section 4(3) of the Labour Relations Law are protected with respect to the principle of equality of opportunity and treatment;

(c)   whether any laws have been adopted or are envisaged, pursuant to section 3 of the Labour Relations Law, regulating the public sector;

(d)  what measures have been taken or envisaged to foster knowledge of article 137 of the Criminal Code among workers and employers in the light of the concluding observations of the UN Committee on the Elimination of Racial Discrimination (CERD/C/MKD/CO/7, 13 June 2007, paragraph 19) regarding the lack of recourse to that provision.

Sexual harassment. The Committee notes that section 9 of the Labour Relations Law prohibits sexual harassment. The Committee draws the Government’s attention to its general observation of 2002 and requests the Government to provide information on the practical application of section 9 of the Labour Relations Law, including information on any relevant judicial or administrative decisions.

Article 1(2). Inherent requirements of a particular job. The Committee notes that, according to section 8 of the Labour Relations Law, there can be exceptions from the general prohibition of discrimination provided for in section 6 of the Law when these exceptions are justified in light of the work to be performed by the worker or the conditions under which it is to be performed, and thus represents a “real and determining condition for carrying out the work”. The Committee recalls that, pursuant to the Convention, such exceptions are to be limited to a particular job based on the inherent requirements thereof, which must be interpreted strictly, so as not to result in undue limitation of the protection provided under the Convention (see General Survey, 1988, paragraphs 125–126). The Committee requests the Government to provide full information on the application of section 8 in practice, including examples of what has been considered to represent a real and determining condition for carrying out work.

Article 1(3). Definition of employment and occupation. The Committee notes that section 6 of the Labour Relations Law prohibits discrimination on the enumerated grounds with respect to both jobseekers and employees. Paragraph 2 of the same section explicitly applies the principle of equality of opportunity and treatment between men and women to “access to employment, promotion, training, education, retraining, salaries and other income arising from employment, absence from work, working conditions, working hours and termination of the employment contract”. Given the different formulation of paragraphs 1 and 2, of section 6 of the Labour Relations Law, the Committee requests the Government to indicate the significance of this difference, and how it is ensured that the principle of equality of opportunity and treatment applies to all aspects of employment and occupation in cases other than those dealing with gender discrimination.

Article 2. Promotion of equality of opportunity and treatment between men and women. The Committee notes that the National Action Plan for Gender Equality (2007–12) was adopted in May 2007, the main objectives of which are the adjustment of domestic legislation to international standards, the removal of gender stereotypes and prejudices, the achievement of a more balanced choice of educational careers, including the promotion of girls’ enrolment in technical schools, the elimination of all forms of discrimination in the labour market, the decrease of female unemployment and the increase of women’s participation in decision-making by fostering their representation in public bodies, notably executive, legislative and judicial organs. This appears to be undertaken pursuant to the measures foreseen in the Law on Equal Opportunities of Women and Men. The Committee, however, notes the persistence of women’s disadvantaged position in the labour market resulting from deep-rooted stereotypes regarding the roles and responsibilities of women and men in family and society (CEDAW/C/MKD/CO/3, 3 February 2006, paragraph 19) as well as the difficulties encountered by Roma and Albanian women in having access to education and employment (ibidem, paragraph 27). The Committee encourages the Government to continue its efforts to promote equality of treatment and opportunity between men and women in the labour market, and requests it to provide full information on the measures taken or envisaged to implement the National Action Plan for Gender Equality, as well as the outcome of such measures, including with respect to Roma and Albanian women.

Promotion of equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes from the information provided in the Government’s report under the Framework Convention for the Protection of National Minorities, that a national strategy for the Roma was adopted in January 2005, followed by a National Action Plan designed to implement this strategy in four areas, including employment and education. The Committee also notes from the second opinion of the Advisory Committee charged with monitoring the Council of Europe’s Framework Convention of the Protection of National Minorities that approximately 70 per cent of the Roma are currently not in formal employment and that due to their low level of educational attainment and qualification, as well as discrimination faced in the labour market, many of them have little chance of finding jobs (ACFC/OP/II(2007)002, 23 February 2007, paragraph 55). The Committee requests the Government to provide information on the measures taken to implement the National Strategy for the Roma in the areas of employment and education and the impact of such measures. The Committee also requests the Government to indicate the measures taken or envisaged to promote equality of opportunities and treatment in respect of other minority groups, in particular the Albanian and Turkish minorities.

Article 3(a). Cooperation with employers’ and workers’ organizations. The Committee notes that under section 246 of the Labour Relations Law, the Economic and Social Council is established as a forum of dialogue between the Government and the social partners for the purpose of fostering cooperation with employers’ and workers’ organizations in the protection and promotion of workers’ rights. The Committee also notes that section 12 of the Law on Equal Opportunities of Women and Men obliges the Government to cooperate with workers’ and employers’ organizations in designing measures to achieve equality of opportunities between men and women in the labour market. The Committee requests the Government to provide information on any activities of the Economic and Social Council relevant to the promotion of the principle of equality of opportunity and treatment in respect of employment and occupation. The Committee also requests the Government to supply information on the cooperation established with the social partners under the Law on Equal Opportunities of Women and Men.

Article 3(c). Legislative and administrative developments. The Committee notes that pursuant to section 14 of the Law on Equal Opportunities of Women and Men, the Ministry of Labour and Social Policy is required to submit proposals for the enactment, the amendment or the integration of laws and other regulations which can enhance the principle of equality of opportunities between men and women. The Committee requests the Government to provide information on the steps taken by the Ministry of Labour and Social Policy under section 14 of the Law on Equal Opportunities of Women and Men.

Article 3(d). Public sector. The Committee notes that the Law on Equal Opportunities of Women and Men calls upon public bodies to adopt periodic plans for the promotion of gender equality embracing, in particular, positive measures to promote equality of opportunity between men and women in the fields of education and professional training. Moreover, under section 13 of the Law, a Coordinator is appointed within each Ministry with the mandate to coordinate initiatives to promote equality of opportunity between men and women within the sphere of action of the respective Ministry, in cooperation with the Ministry of Labour and Social Policy. In particular, the Committee notes that the Coordinator has the obligation to submit to the Ministry of Labour and Social Policy an annual report on the initiatives undertaken. The Committee requests the Government to provide information on the number and content of the periodic plans for the promotion of gender equality adopted by public bodies as well as information on the periodic reports submitted by the Coordinators of the various Ministries. The Committee also requests the Government to supply information on whether any fines have been imposed on public bodies and Coordinators for non-observance of their obligations under the Law on Equal Opportunities of Women and Men. Please also provide information on the application of section 22 of the Labour Relations Law, including statistical information on the employment of ethnic groups in the public sector, disaggregated, when possible, by position and occupation.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee requests the Government to provide information on any legislative or administrative measures and national practice governing the employment and occupation of persons suspected of, or engaged in, activities prejudicial to the security of the State, and provide particulars of the right of appeal available to the persons concerned.

Article 5. Special measures. Workers with family responsibilities. The Committee notes that section 8(2) of the Labour Relations Law refers to special measures for, inter alia, parents, adoptive parents and the dependants, and the protection of motherhood, set out in laws, collective agreements and employment contracts, which are not to be considered discriminatory. Section 101 prohibits dismissal due to parenthood. The Committee notes further that, according to section 161, workers shall be entitled to special protection in connection with pregnancy or parenthood. In particular, section 161(2) lays down the employers’ obligation to facilitate the employees’ easier coordination of family and professional obligations. The Committee also notes that section 164 of the Labour Relations Law sets out limitations on the performance of night and overtime work for women with young children, as well as men in case of the mother’s death, abandonment or incapacity. The Committee requests the Government to provide any information on how sections 8(2), 101, 161 and 164 have been applied in practice. The Committee also requests the Government to provide information on whether any consideration is being given to extending the rights under section 164 to women and men on an equal footing.

Part III of the report form. The Committee notes from the Government’s report that the application of the relevant national legislation concerning the principle of equality of opportunity and treatment between men and women is entrusted to the Department for Equal Opportunities established within the Ministry of Labour and Social Policy. The Committee also notes that pursuant to the Law on Equal Opportunities of Women and Men, a number of Commissions for Equal Opportunities are created at the level of local self-government units. In addition, an Ombudsperson is mandated to deal with cases of violations of the principle of equal opportunities between men and women by public bodies. With respect to discrimination on the grounds set out in section 6 of the Labour Relations Law, this appears to be supervised by the labour inspectorate, pursuant to section 256. There also appears to be a role for mediation (section 182), and possibly arbitration (section 183) under the Law. The Committee requests the Government to provide information on the activities of these bodies relating to the application of the principle of equality of opportunity and treatment in respect of employment and occupation. Please also indicate any other authorities charged with applying the principle of the Convention.

Parts IV and V. The Committee encourages the Government to gather and submit information on judicial and other decisions involving questions of principle relating to the application of the Convention, including information on the results of the procedure for determining unequal treatment of women and men regulated by section 23 of the Law on Equal Opportunities of Women and Men. Please also provide statistical information on the distribution of men and women in the various sectors, positions and occupations, both in the private and public sectors, disaggregated, as far as possible, by race, colour and national extraction.