Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Kirghizistan (Ratification: 1992)

Autre commentaire sur C111

Demande directe

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Article 1 of the Convention. Prohibition of discrimination. Legislation. In reply to its comments, the Committee notes the Government’s statement that article 9 of the Labour Code prohibits both direct and indirect discrimination at all stages of employment, and social origin is a protected ground under the Labour Code. The Committee asks the Government to indicate the measures taken to raise awareness of the anti-discrimination provisions of the Constitution and the Labour Code and to promote effectively equality in employment and occupation.

Scope of application. Public sector. The Committee notes that the Government’s report does not contain any information on equality and non-discrimination in law and in practice in the public sector. Recalling that section 16(2)(2) of the Constitution of 27 June 2010 prohibits discrimination on the basis of “sex, race, language, disability, ethnicity, belief, age, political and other convictions, education, background, property and other status as well as other circumstances”, the Committee asks once again the Government to provide information on any protection against discrimination provided specifically to workers in the public sector, including those covered by Act No. 114 of 11 August 2004 on the Public Service.

Discrimination based on sex. Indirect discrimination. The Committee recalls that in the Act on Gender Equality of 31 January 2003, which prohibits and provides for the definition of “overt” and “hidden” gender discrimination, the definitions provided are narrower than the concept of indirect discrimination. It further recalls that indirect discrimination falls within the scope of the Convention and refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics, and occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of some characteristics (General Survey on the fundamental Conventions, 2012, paragraphs 743 and 745). In the absence of information in the Government’s report, the Committee asks the Government once again to indicate whether any steps have been taken to define and prohibit indirect gender-based discrimination more explicitly in the Act on Gender Equality.

Sexual harassment. The Committee recalls that the definition of “sexual harassment” in section 1 of the Act on Gender Equality is too restrictive and does not cover the whole range of behaviours constituting quid pro quo and hostile work environment sexual harassment. It further recalls that the definitions of sexual harassment contain the following elements: (1) quid pro quo: any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job; and (2) hostile work environment: conduct that creates an intimidating, hostile or humiliating working environment for the recipient (see General Survey of 2012, paragraph 789). The Committee notes that the Government’s report does not contain any information in reply to the Committee’s comments in this regard but merely indicates that it is the legal duty of the employer to take steps to prevent sexual harassment. The Committee is bound to reiterate its request to the Government to indicate the steps taken or envisaged to: (i) include in the legislation a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment; and (ii) raise awareness among employers, workers and their respective organizations of all the forms of sexual harassment, at the national, local or workplace levels, including in the public sector, through media campaigns or public conferences for example.

Exclusion of women from certain categories of work. The Committee recalls that, under sections 218 and 303 of the Labour Code, it is prohibited to employ women for certain categories of work and that Resolution of the Government of the Kyrgyz Republic No. 158 of 24 March 2000 established a list of up to 400 jobs and tasks, with harmful and (or) dangerous working conditions, in which it is prohibited to employ women. The Committee notes the Government’s indication that, as part of the current reform of the labour law, work is under way to review this list. In this regard, the Committee points out that a major shift has occurred over time, moving from a purely protective approach to the employment of women to one based on promoting genuine equality between men and women and eliminating discriminatory law and practice. Protective measures for women may be broadly categorized into those aimed at protecting maternity in the strict sense, which come within the scope of Article 5 of the Convention, and those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention and constitute obstacles to the recruitment and employment of women (see General Survey of 2012, paragraph 839). The Committee recalls that it considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Protective measures for women must be determined on the basis of the results of a risk assessment showing that there are specific risks for women’s health and/or safety. Therefore such restrictions, if any, have to be justified and based on scientific evidence and, when in place, have to be periodically reviewed in the light of technological developments and scientific progress to determine whether they are still necessary for protection purposes. The Committee further recalls that it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access the types of employment concerned on an equal footing with men (see General Survey of 2012, paragraph 840). In light of the above considerations, and within the framework of the ongoing labour law reform, the Committee asks the Government to take steps to: (i) amend the Labour Code, in particular sections 218 and 303, to ensure that any restrictions to women’s access to certain categories of work is strictly limited to the protection of maternity and does not apply to women in general; (ii) review the list of industries, jobs, professions and positions with harmful and/or dangerous working conditions, in which it is prohibited to employ women, established by Government Resolution No. 158 of 24 March 2000; and (iii) review and amend any other gender-based discriminatory legal provisions, including in the Law of 2003 on Labour Protection, restricting the employment of women.

Ethnic minorities. The Committee notes that the Government’s report does not contain any reply to its previous comments on measures adopted to address discrimination or inequalities faced by ethnic minorities, including through affirmative action measures as foreseen by the Constitution. The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its concluding observations, expressed concerned about “the prevalence of stereotyping and stigmatization of ethnic minorities, including Uzbeks, Turks, Uighurs and Mugat”, and requested the Government “to strengthen its efforts, including through education, culture and awareness-raising campaigns, to combat ethnic or racial stereotypes and stigma, with a view to promoting tolerance and understanding”. The CERD was also “concerned about the low level of enjoyment of economic and social rights by certain ethnic groups, in particular the extremely low living standard of the Mugat, characterized by a high unemployment rate, low school attendance and high rates of school dropout, especially among girls”, and “discrimination against Uzbeks in access to work” (CERD/C/KGZ/CO/8-10, 30 May 2018, paragraphs 17, 18(a), 23(a) and (c) and 24). The Committee asks the Government to take steps to address discrimination and inequalities faced by ethnic minorities, in particular the Uzbek and Mugat minorities, to ensure that they have access to education, vocational training and employment on an equal footing with other sections of the population, and that any violations of the principle of equality is duly sanctioned. The Committee also asks the Government to adopt awareness-raising measures with a view to eliminating racial stereotypes and prejudices and to provide information on the initiatives undertaken in this regard.

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 2. National policy on gender equality. The Committee notes the Government’s indication that Directive No. 35 of 2 May 2019 of the Ministry of Labour and Social Development (MLSD) established an Inter-Agency Working Group to develop recommendations to implement amendments to the legislation in force and laws and regulations on criminal liability for gender discrimination and violence in the sphere of work and service relations. The Committee also notes from the Report “Beijing+25: National-level review of the Kyrgyz Republic on the implementation of the Beijing Declaration and Beijing Platform for Action” (the Beijing+25 Report) that “there is a downward trend in women’s economic activity: from 50.4 per cent in 2014 to 45.9 per cent in 2017” and the unemployment rate for women was 8.9 per cent against men’s unemployment of 5.6 per cent. The Committee further notes from this report that, in 2017, a gender analysis of employment legislation and legal mechanisms and instruments to overcome existing barriers for women in the labour market conducted under the auspices of the MLSD showed that, despite the declared prohibition of discrimination by sex or gender, certain elements of discrimination persist both at the legislation level and in the labour market in practice, such as refusal to employ pregnant women and women with young children, lower wages for women, and factors that prevent women from having certain jobs and exercising their employment rights in certain occupations. The analysis included a survey that confirmed the vulnerable status of women in employment. The Committee notes that the National Strategy for Achieving Gender Equality until 2020 (NSAGE 2020), which was adopted by Government Decree No. 443 of 27 June 2012, is currently operationalized by the Fifth Plan for Achieving Gender Equality for 2018–2020 (PAGE 2018–2020). This Plan provides for measures to promote the employment of women, to address gender discrimination and stereotypes through work targeting different social, ethnic and religious groups to eliminate patriarchal views on the roles of women and men in the family and society, to identify discriminatory practices in employment and work relations of pilot ministries, etc. Welcoming all the measures envisaged in the PAGE 2018–2020 to promote and realize gender equality in employment and occupation, the Committee asks the Government to provide detailed information on the manner in which such measures are implemented in practice, in particular measures taken to eliminate gender stereotypes, address horizontal and vertical occupational gender segregation and increase employment opportunities for women, including women from ethnic minorities, in all sectors. The Committee asks the Government to provide information on any steps taken to assess the results of the NSAGE 2020 and PAGE 2018–2020 and to review national gender equality plans accordingly. It also asks the Government to provide information on the recommendations issued by the above-mentioned Inter-Agency Working Group on gender discrimination and violence in employment and occupation.

Equal access to vocational training and education for men and women. The Committee notes the Government’s indication that the system for initial vocational education is aimed at training skilled specialists according to the needs of the labour market and, as of January 2019, it included 30 per cent of girls. There are 56 per cent of young women in secondary vocational education institutions and 53 per cent in higher education institutions. The Committee notes however from the Beijing+25 Report that “the country still has gender segregation in the choice of careers available in higher education: women usually choose humanities, pedagogy (86.6 per cent), healthcare and social sciences (74.8 per cent) and men choose engineering and technology sciences, for example, transport (91 per cent)”. According to this report, “young women and girls, especially from ethnic and religious minorities, face substantial barriers in continuing their education”. The Committee asks the Government to indicate the steps taken or envisaged to ensure that education and vocational guidance is provided free from considerations based on gender stereotypes or prejudices and gender segregation. The Committee also asks the Government to provide information on any barriers identified for girls and young women, including from ethnic or religious minorities, to continue their education in schools and vocational institutions and the measures taken to overcome such obstacles, including through awareness-raising at the community level.

Article 3(a). Cooperation with workers’ and employers’ organizations. Collective agreements. The Committee notes the Government’s indication that representatives of the Federation of Trade Unions of Kyrgyzstan participated in the development of the above-mentioned Plan to Achieve Gender Equality. The Government indicates that, at the first women’s trade union conference for workers in the construction and building materials industry, the introduction of a gender-based approach when concluding collective agreements was discussed and it was recommended to include a “women’s section” in collective agreements providing for labour and social benefits for women. The Government also indicates that, out of 100 primary organizations, two already have such sections in their collective agreements that reflect the needs of women, who enjoy the benefits granted. While welcoming this initiative, the Committee would like to draw the Government’s attention to the importance to implement a gender equality approach, which takes into account the principles in relation to gender-based discrimination explained above and hereafter, so as to ensure that the measures foreseen in “women’s sections in collective agreements do not reproduce gender stereotypes, in particular with respect to family responsibilities, and therefore do not provide additional barriers to the recruitment and employment of women. The Committee asks the Government to continue to provide information on the cooperation of the social partners with regard to promoting equality of opportunity and treatment in employment and occupation and the manner in which they are involved in efforts to promote the Act on Gender Equality. The Committee also asks the Government to provide more detailed information on the content of “women’s sections” in collective agreements and the measures envisaged therein.

Article 5. Special measures of assistance. Workers with family responsibilities. The Committee recalls that the Labour Code provides for special measures for women workers with children under 3 years of age with respect to night work, overtime, work on weekends, etc. (sections 97 and 304). While noting the Government’s indication that such measures are extended to fathers raising children without a mother and to guardians of minors, the Committee must reiterate that when legislation, collective agreements or other measures reflect the assumption that the main responsibility for family care lies with women or excludes men from certain rights and benefits, it reinforces and prolongs stereotypes regarding the roles of women and men in the family and in society. The Committee considers that, in order to achieve the objective of the Convention, measures to assist workers with family responsibilities should be available to men and women on an equal footing (General Survey, 2012, paragraph 786). If not, such measures may constitute obstacles to the recruitment and employment of women and are contrary to the principle of gender equality in employment and occupation. The Committee further notes from the Beijing+25 Report that the NSAGE until 2020 “stresses the uneven distribution of reproductive and family obligations as a factor contributing to economic dependence and vulnerability of women”. Welcoming the Government’s indication that amendments to section 304 of the Labour Code will be considered as part of the work of the Inter-Agency Working Group to improve the labour law, the Committee asks the Government to review and amend the above provisions with a view to ensuring that measures aimed at assisting workers with children are provided to both men and women workers on an equal footing.

Enforcement. While noting the general information provided by the Government regarding the enforcement authorities (Office of the Ombudsman, the General Procurator) in cases of a violation in relation to gender equality, the Committee notes that the report does not contain any information in response to its previous request on the number and nature of complaints lodged, as well as summaries of the decisions of particular relevance to the principle of the Convention. The Committee therefore asks the Government once again to provide information on the number and nature, including the prohibited ground concerned, of complaints in relation to discrimination based on any of the grounds covered by the Convention in employment and occupation dealt with by the Ombudsman and the General Procurator, as well as information on the sanctions imposed and the remedies granted.