Demande directe (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the Government's detailed reports and the documentation attached, and notes with interest the envisaged gradual increase in the legal age for early retirement and old-age pension entitlements for women to harmonize it with that of men (65), thereby giving effect to the 1990 Constitutional Court decision.

1. Discrimination on the basis of sex. The Committee notes the recent amendment of the 1979 Equality of Treatment Act, introducing administrative penalties aimed at private and public procurers of labour for offences against the prohibition of sex discrimination in job advertisements of up to 5,000 schillings. The fine, the amount of which is to be determined in implementing legislation in each state (Land), shall be imposed by the district authorities following a complaint by a job applicant or a district public attorney for equal opportunities. The Committee asks the Government to indicate whether all Länder have enacted such implementing legislation and to supply information on the number and nature of any cases where such a complaint was made, as well as their outcome. Furthermore, it would be grateful if the Government would provide copies of any judicial decisions in which reference is made to discrimination of this kind.

In addition, the Committee notes from the Government's report that 27.6 per cent of job advertisements make no reference to sex, which is an increase of 2.6 per cent in relation to the last data; 35.5 per cent of advertisements are specifically directed towards women and 36.9 per cent towards men. The Committee would like to receive a copy of the guidelines explaining neutral procedures in job advertising, if possible in a working language of the ILO, once they are published. It also asks the Government to keep it informed of any changes in the percentage of job advertisements which continue to specify the preferred sex of the applicant, particularly in view of the comment received from the Federal Chamber of Labour (citing parliamentary questions) that gender-specific terms were even found in job offers of the Labour Market Service, including the phrase "No women need apply".

2. The Committee notes that 40 cases were reported to the Equality of Treatment Committee between the date of its transfer to the Federal Chancellery (January 1991) and May 1994, 32 of which have been dealt with. According to the Government's report, 14 of the cases lead to a written proposal to the employer of means to bring its practices into conformity with the Equality of Treatment Act. The Committee would be grateful if the Government would continue to supply information on the outcome of cases involving allegations of sex discrimination dealt with by the Equality of Treatment Committee or the courts. It is particularly interested in this information in view of the Federal Chamber of Labour's comment, following the Constitutional Court ruling of 3 March 1994 which amended section 2(6) of the Act by deleting the requirement "to comply with the instructions of the Equality of Treatment Committee", that the Committee's decisions, despite its many years of specific experience in this field, are treated as "soft law". The Government replies to this comment by stating that the Committee's mediation power is different from the enforcement powers of the courts in accordance with the constitutional principle of separation of powers.

3. The Committee notes with interest the details supplied on the establishment of various programmes for providing vocational training and guidance to women, and the Government's intention to formulate procedures for collection of data so as to evaluate the number of women who find jobs through these programmes. Noting, however, the concern of the Federal Chamber of Labour that the measures of the Labour Market Service in this area should not only be evaluated quantitatively, but also qualitatively, the Committee asks for further details on the average duration of the training programmes, the certificates of completion granted and, if possible, on the entry of trained women into the labour market. As an action programme for equal opportunities for girls in education, training and occupation is under way, the Committee asks the Government to supply a copy of the Equality of Treatment Committee's report (or extracts in a working language of the ILO) on discrimination in apprenticeship, to which it refers in this connection in its report.

4. Discrimination on grounds of political opinion and religion. The Committee notes with interest the decision of the Supreme Court of 11 August 1993 in which the Court stated that an action for nullity of dismissal could be brought under section 879 of the General Civil Code where the grounds for the dismissal could be regarded as immoral (Sittenwidrig). This would allow for appeals against decisions which appear to have been taken on grounds such as an employee's religion or political opinion and thus - as has earlier been pointed out by the Committee - do not fall within the scope of section 105 of the Collective Labour Relations Act. Moreover, this gives legal recourse in case of dismissal for persons working in companies with less than five employees. The Committee requests the Government to keep it informed of the development of jurisprudence with regard to this use of section 879.

5. Discrimination on grounds of race, colour and national extraction. With regard to equality of opportunity and treatment irrespective of race, colour or national extraction, the Committee notes the Government's reply that the Labour Market Service takes steps in this regard, providing special counselling, for instance, for foreigners seeking employment. Noting also the information supplied by the Government to the United Nations Committee on Economic, Social and Cultural Rights (United Nations document E/1990/6/Add.5, dated 19 October 1993) on education and training of ethnic groups, the Committee would be grateful to receive, in future reports, information on any recent measures which have to be taken to promote equality in employment, vocational training, vocational guidance and placement services under the direct control of the national authority and with the cooperation of employers' and workers' organizations and other appropriate bodies.