Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 1 of the Convention. Legislative developments. Prohibited grounds of discrimination. The Committee notes that the new Employment Contracts Act, adopted on 17 December 2008, provides that “employers shall ensure the protection of employees against discrimination, follow the principle of equal treatment and promote equality in accordance with the Equal Treatment Act and Gender Equality Act” (section 3), without specifying any prohibited grounds of discrimination. The Committee notes, however, that the Gender Equality Act of 2004 defines and prohibits direct and indirect discrimination based on sex with respect to all aspects of employment, and that the Equal Treatment Act, which was adopted on 11 December 2008, aims at ensuring the protection of persons against discrimination on the grounds of “nationality (ethnic origin), race or colour … religion or other beliefs, age, disability or sexual orientation” (section 1(1)). This Act also provides that it “does not preclude the requirements of equal treatment in labour relations on the basis of attributes not specified in section 1(1) of this Act, in particular due to family-related duties, social status, representation [of] the interests of employees or membership in an organization of employees, level of language proficiency or duty to serve in defence forces” (section 2(3)). With respect to the prohibited grounds of discrimination enumerated in the Convention, the Committee requests the Government to take the necessary measures to include the prohibition of discrimination based on political opinion and social origin in employment and occupation in its legislation in order to give full effect to Article 1(1)(a). It further requests the Government to indicate how protection against discrimination on these two grounds is ensured in practice. With respect to the ground of “nationality (ethnic origin)”, please indicate whether this would cover distinctions between citizens of the same country on the basis of a person’s place of birth, ancestry or foreign origin. The Committee would be grateful if the Government would clarify whether section 2(3) of the Equal Treatment Act means that discrimination in employment and occupation is also prohibited on the basis of family-related duties, social status, representation of the interests of employees or membership in an organization of employees, level of language proficiency or duty to serve in defence forces and, if not, to explain its purpose and meaning.

Fields covered by anti-discrimination provisions. The Committee notes that, according to section 2 of the Equal Treatment Act, the protection against discrimination covers access to employment, occupation and vocational training, as well as working conditions, including remuneration. However, it observes that whereas discrimination on the grounds of nationality (ethnic origin), race and colour is prohibited in relation to social protection (including social security and health care and social advantages) and education (section 2(1)(5) and (6)), the prohibition with respect to these fields does not apply to discrimination on the grounds of religion or other beliefs, age, disability or sexual orientation. The Committee wishes to recall that “[u]nder Article 5 of the Convention, distinctions in respect of employment-related social security, to the extent that they do not constitute a special measure of protection or assistance provided for in other international labour Conventions or are generally recognized as necessary, constitute unlawful forms of discrimination”, and that “[a]ny discriminatory treatment in respect of benefits or of conditions of entitlement to social security … should be eliminated” (Special Survey on Equality in Employment and Occupation, 1996, paragraph 113). The Committee also wishes to draw the Government’s attention to the fact that discrimination with respect to access to education will be reflected in future in the lack of equality of opportunity and treatment in respect of employment and occupation. The Committee requests the Government to indicate the measures envisaged or taken to ensure that discrimination on all the grounds enumerated in Article 1(1)(a) of the Convention is prohibited in all aspects of employment, including education and social protection.

Scope of legislation. Public service. The Committee notes that the Gender Equality Act and the Equal Treatment Act apply both to the public and private sectors. It further notes that according to the Government the Public Service Act prohibits discrimination based on sex, nationality (ethnic origin), race, colour, religion or other beliefs, age, disability, sexual orientation, level of language proficiency, duty to serve in defence forces, marital or family status, family-related duties, social status, representation of the interests of employees or membership in workers’ associations. The Committee requests the Government to take the necessary measures to ensure that the legal protection of public servants against discrimination includes discrimination based on political opinion and social origin, in accordance with Article 1(1)(a) of the Convention, and applies to all aspects of employment.

Article 2. Measures to promote gender equality. The Committee notes that the statistics provided by the Government show that occupational segregation, both horizontal and vertical, between men and women remains important in the labour market and that women are concentrated in certain sectors of the economy such as education, retail trade, health care and social work, and accommodation and food services, and only represent 8.9 per cent in the category of legislators, senior officials and managers as compared to 15.3 per cent for men. It also notes that the gender remuneration gap is significant.

The Committee notes with interest that an Estonian–French twinning project on equality between men and women was carried out in 2007 and 2008 and that it led to a compilation of European good practices and a set of guidelines for employers to promote gender equality in enterprises as regards recruitment, training and career, pay and work–life balance. The Committee notes the creation within this framework of a network of employers, representatives of workers, gender experts and other relevant actors with a view to exchanging information, experience and good practices in promoting gender equality in enterprises. The Committee also notes the Promotion of Gender Equality Programme (2008–10) which was adopted to support the results of the twinning project, and aims specifically at raising awareness of employers and workers, supporting the implementation of the gender mainstreaming strategy in the labour market and the gender equality legislation, and reducing gender stereotypes.

Recalling that gender-based occupational segregation is often linked to gender stereotypes about the roles of women and men at work and in the family, the Committee asks the Government to continue to take measures to overcome such prejudices and stereotypes and to promote women’s access to a wider range of occupations and industries, including through awareness-raising campaigns, dissemination of the guidelines for employers on gender equality, education, vocational guidance and the development of more diversified training opportunities for women and men. It asks the Government to provide information on the implementation and the results of the Promotion of Gender Equality Programme and its impact on the situation of women and men in the labour market.

As regards the implementation of the Gender Equality Act, the Committee requests the Government to provide information on any practical measures taken by the State and local government agencies (section 9) and by employers (section 11) to promote effectively gender equality. The Committee further requests the Government to provide information on any special temporary measures taken or envisaged under section 5(2)(5) of the Gender Equality Act to promote gender equality and grant advantages for the less-represented gender or reduce gender inequality. Please also continue to provide statistical information on the participation of men and women in the labour market, according to industry and occupation.

Article 1(2). Inherent requirements of the job. With respect to the language proficiency requirements, the Committee notes that the Government indicates that such requirements are established by Regulation No. 105 from 26 June 2008, made under the Language Act, and monitored by language inspectors. It also notes the Government’s indication that the weak knowledge of the State language prevents non-Estonians living in Estonia from finding jobs in their home regions and elsewhere in Estonia. In its previous comments, the Committee referred to the resolution of the Committee of Ministers of the Council of Europe of 2006 inviting the Government to review such requirements so as to ensure that they are realistic, clear and proportional. The Committee asks the Government to indicate if it is envisaged to examine the levels of language proficiency required for various sectors of employment, so as to ensure that they do not constitute obstacles or indirect discrimination, as regard access to employment and occupation of workers from ethnic minorities, both in the private and public sectors. Please also continue to provide information on the enforcement of these regulations, including the number and nature of cases in which sanctions were imposed for non-compliance.

Moreover, noting that under section 10(1) of the Equal Treatment Act, a difference of treatment based on a prohibited ground is not deemed to be discrimination if such ground is a genuine and determining occupational requirement, the Committee requests the Government to provide information on the application of section 10(1) in practice, indicating the grounds and the occupations concerned.

Equality of opportunity and treatment of ethnic minorities. The Committee notes the detailed information provided by the Government on the implementation of programmes and policies aimed at the integration of ethnic minorities, in particular, the project of the Integration’s Foundation “Reduction of the unemployment risk of non-Estonian speaking young people in Ida-Virumaa, Tallinn and Hajumaa through Estonian language training, professional retraining and in-service training”. The Committee notes that according to the Government’s report, the rate of unemployment among non-Estonian young people is more than twice as high as the average in Estonia. The Committee encourages the Government to pursue its efforts to promote equal opportunities of ethnic minorities, in particular with regard to access to education, including language training, vocational training opportunities and employment and occupation. It requests the Government to continue to provide information on the measures taken and the activities conducted to promote equality of opportunity and treatment of ethnic minorities as well as on the measures taken to ensure that workers from ethnic minorities are effectively protected against discrimination in employment and occupation. The Committee further requests, once again, the Government to provide statistical information, disaggregated by sex, regarding the participation of the ethnic minority groups in the labour market, including at the different levels of the public service.

Enforcement. The Committee notes the information provided by the Government regarding the number of applications received by the Gender Equality and Equal Treatment Commissioner – 40 applications concerning employment and occupation issues between January and August 2009, 19 of which concern possible cases of discrimination. The Committee also notes that, according to the Government, the number of applications made to the Chancellor of Justice is very low. Recalling that the low number of applications may be due to the lack of knowledge of the law and the enforcement mechanisms, the Committee requests the Government to indicate the measures taken to raise awareness of workers and employers and their organizations of their rights and duties under the Gender Equality Act and the Equal Treatment Act as well as of the role of the Gender Equality and Equal Treatment Commissioner and the Chancellor of Justice. The Committee requests the Government to continue to provide information on the number of discrimination cases dealt with by the above authorities, the grounds of discrimination invoked and the outcome of administrative and judicial proceedings (sanctions imposed and remedies provided). Please also provide information on the outcome of the case considered by the Supreme Court concerning possible discrimination based on sex to which the Government refers in its report. The Committee also asks the Government to provide information on the role and powers of the labour inspectorate in supervising the application of the general anti-discrimination provisions of section 3 of the new Employment Contracts Act of 2008, since section 115 of that Act, which deals with State supervision, does not seem to envisage such involvement.