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

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Géorgie (Ratification: 1993)

Autre commentaire sur C111

Observation

Demande directe

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The Committee takes note of the observations of the Georgian Trade Union Confederation (GTUC) received on 6 October 2020, reiterating its observations received on 30 September 2019, which address issues related to the application of the Convention. The Committee requests the Government to provide its comments in this respect.

Article 1 of the Convention. Legislative developments. Recalling that sections 1 and 2(1)–(4) of the Law on the Elimination of All Forms of Discrimination of 2014 define and prohibit direct and indirect discrimination, as well as multiple discrimination, based on the grounds set out in the Convention, as well as a range of other grounds, the Committee previously asked the Government to consider taking the opportunity of the revision of the Labour Code to clarify the existing non-discrimination provisions by including a specific definition and prohibition of direct and indirect discrimination at all stages of employment and occupation. It notes with interest the inclusion of provisions to expand the scope of application of the principle to labour and pre-contractual relations, including access to all forms of vocational training, conditions of employment, labour, remuneration and termination of employment, and trade union membership and activities. The Committee also notes with interest that the Parliament passed amendments to the Labour Code on 29 September 2020, in which it defines and prohibits both direct and indirect discrimination in employment and occupation. The Committee asks the Government to provide a copy of the Labour Code, as amended. It also asks the Government to provide information on any judicial cases successfully brought to the courts on the grounds of direct or indirect discrimination in employment or occupation.

Article 1(2). Inherent requirements of the job. Recalling that section 4(9) of the Law on the Elimination of All Forms of Discrimination provides that differential treatment and creation of different conditions and/or situations shall be permissible if there is “an overwhelming state interest and the necessity of state intervention in a democratic society”, the Committee previously asked the Government to clarify the practical application and objective of the provision, and to provide information on any cases brought before the Office of the Public Defender or the courts regarding this provision. It notes the Government’s statement that no cases have been brought regarding the application of this provision. The Committee recalls, once again, that under the Convention, exceptions to the principle of non-discrimination in employment and occupation are to be interpreted strictly and must be related to the inherent requirements of the job (see 2012 General Survey on the fundamental Conventions, paragraphs 827–831). The Committee therefore asks once again the Government to clarify the practical application and objective of the provision, and to continue to provide information on any cases brought before the Office of the Public Defender or the courts regarding section 4(9) of the Law on the Elimination of All Forms of Discrimination.

Indirect discrimination. Objective circumstances. The Committee recalls the GTUC’s previous observations according to which employers have used sections 6(12)(e) and 37(1)(n) of the Labour Code, allowing the conclusion of short-term contracts where there are “objective circumstances”, as a means of discriminating on the basis of sex, trade union activities and political views. The Committee notes the Government’s general statement that the courts confirmed the wrongful application of these provisions in three instances and reinstated the plaintiffs in their former positions, but notes that no further detail was provided in this respect. In order to assess the conformity of these provisions with the principles laid down in the Convention, the Committee asks the Government to provide more detailed information on cases where sections 6(12)(e) and 37(1)(n) of the Labour Code have been successfully applied by employers.

Article 2. Equality of opportunity and treatment of ethnic minorities. In its previous comments, the Committee asked the Government to: (1) step up its efforts to promote equality of opportunity and treatment of ethnic minorities in employment and occupation; (2) provide statistical data on the situation of members of the different ethnic minorities in employment in the public and private sectors and on their participation rates in various training courses; and (3) provide information on any cases of ethnic or racial discrimination in the field of employment reported to the Office of the Public Defender or dealt with by the courts. It notes the Government’s indication that efforts were made to increase access of ethnic minorities to state-funded vocational training programmes through, for example, testing in their native languages. The Committee also notes from the Government’s report on the application of the International Convention on the Elimination of All Forms of Racial Discrimination (June 2020) that: (1) the Labour and Employment National Strategy prioritized the increase of the access of representatives of ethnic minorities to employment and the improvement of their social-economic conditions and opportunities, and (2) many information meetings on employment support services, occupation safety and labour rights for ethnic minorities were organized (CERD/C/GEO/9-10, paragraphs 118 and 120). However, the Committee notes the Government’s indication that no case based on ethnic or racial discrimination has been heard by the courts or the Public Defender. It recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (see the 2012 General Survey, paragraphs 870 and 871). The Committee asks the Government to continue to promote equality of opportunity and treatment of ethnic minorities in employment and occupation, including through targeted measures to increase their representation in governance institutions and improve their educational opportunities. Noting the absence of information provided in this regard, the Committee again asks the Government to provide statistical data on the situation of members of the different ethnic minorities in employment in the public and private sectors, including their representation in public institutions, and on their participation rates in various training courses. The Committee encourages the Government to raise awareness of the relevant legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of ethnic and racial discrimination, and also to examine whether the applicable substantive and procedural provisions allow claims to be brought successfully in practice. The Committee asks the Government to provide information on any cases of ethnic or racial discrimination in the field of employment and occupation reported to the Office of the Public Defender or dealt with by the courts.

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 3(e). Access to vocational education and training. In reply to its request for information on the results achieved under the different strategies and programmes to promote equal opportunities for all groups in society, the Committee notes the Government’s indication that, in 2018, the Office of the State Minister conducted a training course on “How to Start and Develop Business” for a total of 30 women in partnership with the Academy of the Ministry of Finance. The Government also refers to: (1) a new initiative aimed at providing free training courses in website development and social media marketing for women aged 18–35 in five regions, and (2) the organization of two-day camps for 14–16 year old girls where they were taught the basics of computer programming. The Committee notes the information provided by the Government on the implementation of the State Programme for Professional Training, Retraining and Qualification Improvement of Job Seekers, in which beneficiaries receive training in professions that are currently in demand. In 2017, 70.4 per cent of the 2,360 beneficiaries were women, and in 2018 they represented 68.6 per cent of the 2,871 beneficiaries. Taking due note of the information provided, the Committee asks the Government to pursue its efforts to promote equal opportunities for women, and to provide information on the measures taken and their results. It also asks the Government to provide information, including statistics disaggregated by sex and ethnicity, on the specific steps taken and the results achieved under the different strategies and programmes to promote equal opportunities for other groups in society, such as ethnic minority and race.

Article 5. Special measures of protection. In its previous comment, the Committee recalled that Decree No. 147 of 3 May 2007 contains an extensive list of “hard, hazardous and dangerous jobs” according to which pregnant or nursing women cannot be recruited (section 4(5) of the Labour Code) and asked the Government to ensure that the limitations on the work that can be undertaken by pregnant or breastfeeding women do not go beyond what is needed to protect maternity in the strict sense, are not based on stereotyped perceptions regarding the capacity and the role of women in society and do not, in practice, limit the access of women to employment in general. The Committee notes the Government’s indication that it is in the process of aligning the national legislation with European directives, including the Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. The Committee wishes to recall that 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, 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 2012 General Survey, 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. Therefore, any restrictions on women’s access to work based on health and safety considerations must be justified and based on scientific evidence and, when in place, must be periodically reviewed in the light of technological developments and scientific progress, to determine whether they are still necessary for protection purposes. The Committee also emphasizes the need to adopt measures and put in place facilities to enable workers with family responsibilities, in particular women, who continue to bear the unequal share of family responsibilities, to reconcile work and family life. In light of the above, the Committee reiterates its request that the Government, when reviewing the list of jobs under Decree No. 147 of 2007, ensures that the limitations on the work that can be undertaken by pregnant or breastfeeding women do not go beyond what is needed to protect maternity in the strict sense, and that any other protective measures taken be strictly limited to maternity protection, and do not constitute obstacles to the employment of women, in particular to their access to posts with career prospects and responsibilities. The Committee asks the Government to provide information on any development in this regard.

Enforcement. The Committee previously asked the Government: (1) to take steps to ensure the effective enforcement of the anti-discrimination legislation in employment and occupation; (2) to indicate how the Labour Conditions Inspecting Department ensures that the anti-discrimination provisions of the Labour Code are applied; and (3) to take steps to raise the awareness of the judiciary, labour inspectors and other public officials, as well as the public in general, regarding the prohibition of direct and indirect discrimination in employment and occupation. It notes, from the GTUC’s observations, that the Labour Conditions Inspecting Department does not have the mandate to properly tackle discrimination issues as it can only address situations of discrimination at the request of employees or employers and its recommendations are non-binding. The GTUC further observes that the Public Defender is also ill-equipped to deal with cases of discrimination because: (1) legal persons of private law are not obligated to submit the necessary information to enable it to investigate a case, (2) its recommendations are not binding on private sector employers, and (3) it does not have the right to enter a workplace or investigate a case on its own initiative. The Committee further notes, from the Public Defender’s 2019 Special Report on Combating and Preventing Discrimination and the State of Equality, the low implementation rate of its recommendations. The Committee notes the Government’s intention to transform the current Labour Conditions Inspecting Department into an independent Labour Inspectorate. The Government also indicates that a practical guide for labour inspectors is being drafted in order to improve the inspection process by making it more efficient, transparent and results-oriented, and that a code of ethics is being developed to define the scope of the inspection process and to ensure that it is transparent and applies uniform standards. The Committee notes that in order to raise awareness on discrimination issues, labour inspectors were trained in gender discrimination in the workplace by the Public Defender of Georgia and UN Women in 2018. However, it notes the Government’s indication that during the labour inspections that took place between 2017 and 2019, no case of discrimination was identified. The Committee asks the Government to provide information on any progress made in setting up an independent Labour Inspectorate capable of fully investigating and addressing cases of discrimination in employment and occupation, and issuing binding sanctions and remedies. It further urges the Government to take steps to raise the awareness of the judiciary, labour inspectors and other public officials, as well as the public in general, regarding the prohibition of direct and indirect discrimination in employment and occupation, and to provide information on any relevant cases addressing discrimination concerning employment and occupation examined by the competent authorities, such as labour inspectors, the Office of the Public Defender, the Gender Equality Council and the courts, including the sanctions imposed and remedies provided.

Burden of proof in discrimination cases. Recalling that the shifting of the burden of proof can be a useful means of ensuring redress in cases of discrimination in employment and occupation, the Committee repeats its request that the Government indicate whether, in the context of the ongoing reform of the Labour Code, any consideration has been given to amending the provisions in the Code to allow for the shifting of the burden of proof in cases of discrimination relating to additional aspects of employment, including recruitment, conditions of work, promotion and advancement.