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

1. The Committee notes with interest the amendment of the 1979 Equality of Treatment Act by Act No. 833/1992, in force on 1 January 1993, which, inter alia, expands the concept of equality of treatment and improves enforcement through the following provisions:

- inclusion of the concept of "indirect discrimination" to clarify that an explicit reference to the sex of the employee(s) is not required for a measure to be regarded as discriminatory if it places one sex at a disadvantage;

- introduction of a claim to compensation for damages as a result of violations of the principle of equal treatment in the establishment of the employment relationship (up to two months' salary) and in career advancement (up to four times the difference between the salary paid and that which would have been paid after promotion);

- introduction of an opportunity to appeal against termination of or dismissal from employment which results from a violation of the principle of equal treatment;

- incorporation of sexual harassment by the employer or by a third party followed by inaction of the employer, in the coverage of discrimination on grounds of sex on the basis of which a claim for compensatory damages can be made;

- introduction of administrative penalties for breach of the requirement that advertisements for employment shall be gender-neutral; amd

- creation of an obligation to display the Equality of Treatment Act in the workplace.

Noting from the 1990 amendment to the principal Act that a five-yearly report will be made to the National Assembly on the development of equality in the country, the Committee requests the Government to send a copy with its next report.

2. The Committee notes that the Federal Chamber of Labour is of the opinion that the amount of damages compensation introduced by Act No. 833/1992 is insufficient. The Federal Chamber points out that a proposal by trade unions and the Federal Chamber of Labour for reversal of the burden of proof has not been accepted. The Committee asks the Government to comment specifically on these points.

3. The Committee notes with interest that Federal Act No. 100/1993 on the Equality of Treatment of Men and Women and the Promotion of Women in the Federal Service, in force on 13 February 1993 and amended on 1 January 1994, provides for, inter alia:

- prohibition of direct and indirect discrimination on the basis of sex in employment and training;

- listing of criteria not to be considered in hiring, including previous interruption of employment, part-time service, age and marital status and a spouse's income;

- invalidity of dismissals established as discriminatory;

- incorporation of sexual harassment in the definition of discrimination on the basis of sex;

- establishment of a Commission for Equal Treatment in the Federal Service;

- preference to be given to women for the purpose of raising the percentage of women in permanent federal service to a minimum of 40 per cent, except for those posts where a given sex is "an indispensable prerequisite for the performance of the designated work"; amd

- obligation of each central agency to report on a two-yearly basis on the status of equality of treatment and promotion of women, starting 31 March 1996.

The Committee requests the Government to inform it (with statistical data) of the progress achieved in redressing the low proportion of women in federal employment and their under-representation in high-level posts. It would appreciate receiving with the next report a copy of the first central agencies' equality reports.

4. Also in the domain of measures against sex-based discrimination in employment, the Committee notes that the Federal Act respecting the reports of the federal Government concerning the Reduction of Disadvantages for Women (No. 837/1992) requires the Government to report to the National Assembly every second calendar year (until 2018) on measures concerning working women (such as the creation of facilities to make it possible for men and women to combine family responsibilities with professional activities; socio-political measures to reduce the disadvantages for women arising from motherhood; active measures to promote women in all social spheres, in particular in the labour market, science, art and public employment; and measures to ensure adequate livelihood for women, above all in respect of old age, invalidity and unemployment). The Committee also notes the adoption of the Labour Market Service Act (No. 314/1994) which provides that labour market services shall be organized so as to establish the greatest possible equality of opportunity and that "(i) in particular, the gender-specific division of the labour market and the discrimination against women on the labour market shall be combated with appropriate intervention" (section 31(3)). The Committee asks the Government to provide copies of the most recent government report to Parliament and to inform it of any labour market interventions aimed at eliminating sex-based occupational segregation.

5. The Committee notes that, in reply to its previous observation concerning the measures taken by the Länder to give effect to the Equality of Treatment Act in respect of agricultural and forestry workers, the Government points out that all Länder have adopted the prohibition of sex-based discrimination in their implementing legislation, and all except three have given effect to the stronger enforcement amendments of Act No. 833/1992 by making the required changes in their law.

However, the information supplied by the Federal Chamber of Labour on the number of Länder which have given full effect to the amended Act conflicts with that of the Government, and the Federal Chamber of Labour considers that the Government's authority in respect of the failure of the Länder to enact implementation laws is limited as a result of article 12 of the federal Constitution (division of legislative powers between the federal and state jurisdictions). The Committee consequently asks the Government to provide details regarding its efforts to ensure that the Equality of Treatment Act is fully implemented in the fields of agriculture and forestry.

6. The Committee is addressing a request directly to the Government on other matters.