Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Mongolie (Ratification: 1969)

Autre commentaire sur C111

Observation

Demande directe

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Article 1(1) of the Convention. Definition of direct and indirect discrimination. With reference to its observation, the Committee notes that the new Labour Law adopted on 2 July 2021 now provides for a definition of “direct discrimination” and “indirect discrimination” (section 6.2). It notes, however, that “indirect discrimination” is defined as “any decision and action that discriminates against an individual or a group of persons, restricts their rights, and deprives them of equality and opportunities by establishing privileges on the grounds specified …”. The Committee observes that, according to the Law on the Promotion of Gender Equality (LPGE), “indirect gender discrimination” is defined as “the placing of a person of one sex in a disadvantaged situation compared to a person of the opposite sex in the same or similar circumstances as an effect of seemingly gender neutral standards and/or practices” (section 4.1.6). In this regard, the Committee recalls that it considers that “indirect discrimination” refers to “apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. [Such discrimination] 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 characteristics such as race, colour, sex or religion, and is not closely related to the inherent requirements of the job” (see the 2012 General Survey on the fundamental Conventions, paragraph 745). The Committee asks the Government to seize the opportunity of any future review of the Labour Law to take steps to amend the provisions defining “indirect discrimination” to align them with the above definition and the definition provided in the LPGE.

Prohibited grounds of discrimination and additional grounds. With reference to its observation, the Committee notes that the list of prohibited grounds of discrimination now covers “political opinion” as well as “appearance” which could include the ground of “colour” as enumerated in Article 1(1)(a) of the Convention. With respect to the ground of “national extraction”, the Committee notes that the Government indicates in its report that, in the draft Labour Law, it was covered by “origin” and “descent”. It observes however that in the English version of the adopted Labour Law neither “origin” nor “descent” are reflected in the list of prohibited discrimination grounds in section 6.1. The Committee asks the Government to confirm that “appearance” also covers “colour” and that “national extraction” – as meaning a person’s place of birth, ancestry or foreign origin – is covered by one or more grounds specified in section 6.1 of the Labour Law, specifying the grounds concerned.

Articles 1(1), 2 and 3(c). Discrimination based on sex and promotion of equality of treatment for men and women. Workers with family responsibilities. With reference to its observation, the Committee notes the new Labour Law: (1) removes the provisions that allowed for the adoption of a general prohibition on the employment of women in specified jobs and (2) extends provisions which in the previous Labour Law, were exclusively applicable to women workers with children under 8 years of age to all men workers with children under 3 years of age, such as the prohibition of overtime (section 91.4), night work (section 88.5) or going to a business trip (section 141.1), except with their consent, and the possibility of working from home or from a distance (section 140.1). The new Labour Law also prohibits work during public holidays or weekends for men and women workers with children under 3 years of age, except with their consent (section 98.2). The Committee also notes the inclusion of provisions, in the Labour Law, extending the right to parental leave (previously “baby care leave” for mothers of children under 3 years of age) to fathers of children under 3 years of age (section 139). With respect to termination of employment, the Committee notes, however, that, with a few exceptions, the prohibition on the termination of the employment relationship applies only to mothers and to single fathers with children under 3 years of age (section 135.1). The Committee asks the Government to take proactive steps to raise public awareness about the absence of restrictions on the recruitment of women in certain occupations and the rights provided by the new Labour Law to both men and women workers with children under three years of age. It also asks the Government to consider extending the prohibition of termination of employment of mothers and single fathers with children under 3 years of age to all fathers with children under 3 years of age. The Committee asks the Government to provide any available information, disaggregated by sex, on the number of workers who were granted a parental leave under section 139 of the Labour Law.

Article 1(1)(a). Discrimination based on sex. Retirement age. Recalling its previous comments concerning section 4 of the Law on Pensions and Benefits, which provides for different retirement ages for men and women, and the possible discriminatory effect of this provision, the Committee notes the Government’s indication in its report that, once the draft Revised Labour Law is adopted, the issue of retirement age will be discussed by the social partners. Noting that the new Labour Law was adopted in June 2021, the Committee encourages the Government once again to ensure that the working life of women is not shortened in a discriminatory manner and to amend the Law on Pensions and Benefits accordingly. It asks the Government to provide information on any steps taken in this regard.

Sexual harassment. The Committee notes that the new Labour Law includes provisions prohibiting both quid pro quo and hostile environment sexual harassment (section 7). The Committee recalls that quid pro quo sexual harassment refers to “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” (2012 General Survey, paragraphs 789–794). It observes that the provisions regarding quid pro quo “sexual harassment” in section 7.2 is unclear and does not clearly reflect these key elements. In addition, the Committee recalls that, in its previous comments, it had requested the Government to amend the definition of “sexual harassment” in the LPGE in so far as it refers to “sexual intercourse”, to ensure that all forms of behaviours with a sexual connotation are covered. The Committee further notes the Government’s indication in its national report to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) that 584 organizations (17 ministries and agencies, 533 local government agencies and 34 NGOs) “included the arrangement on the prevention of workplace sexual abuse in their internal labour regulations”. The Committee asks the Government to consider including in the Labour Law a clear definition of quid pro quo sexual harassment and review the definition in the LPGE, to ensure that it encompasses all forms of behaviours with a sexual connotation. It further asks the Government to provide information on: (i) the implementation in practice of the provisions of the Labour Law imposing a duty on the employer to put in place procedures to prevent and address sexual harassment; (ii) the outcome, including sanctions and remedies, of any case of sexual harassment dealt with by the National Human Rights Commission and the courts; (iii) the content of the “arrangement on the prevention of workplace sexual abuse” to which the Government referred in its 2020 report to the CEDAW; and (iv) the development of regulations on sexual harassment applicable to public officials mentioned in its previous comment.

Discrimination based on race and colour. Migrant workers. Recalling that both nationals and non-nationals should be protected from discrimination in employment and occupation based on the grounds covered by the Convention, the Committee notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its final observations, expressed concern “about the substandard working and living conditions of migrant workers and about the lack of effective monitoring and inspection mechanisms to ensure that they enjoy the same working conditions as Mongolian workers” (CERD/C/MNG/CO/23-24, 17 September 2019, paragraph 17). The Committee asks the Government to provide information on the situation of migrant workers and any measures taken to ensure that they are protected effectively against all forms of discrimination in employment and occupation, including through appropriate control and enforcement mechanisms.

Articles 1(1)(a) and 1(2). Discrimination based on political opinion. Inherent requirements of the job. Civil service. With respect to its previous comments concerning the practice of dismissing public officials because of their political opinion, particularly after general and local elections, the Committee notes the Government’s reference to provisions of the Revised Civil Service Law describing the circumstances in which “core civil servants” are prohibited from expressing political views. The Committee recalls that “cases where political opinion is taken into consideration as a prerequisite for a given job should be objectively examined under judicial scrutiny to determine whether this prerequisite is actually justified by the inherent requirements of the particular job” (2012 General Survey, paragraph 805). To determine whether the legal prohibition on expressing political views meets the criteria of inherent requirements of the job within Article 1(2) of the Convention, the Committee asks the Government to provide specific information on the exact meaning of “core civil servants”, specifying the occupations covered and the extent to which each individual case is carefully examined. It further asks the Government to take effective steps to ensure that civil servants in general are effectively protected against discrimination based on political opinion, in accordance with Article 1(1)(a) of the Convention and to consider the possibility of adopting, in the near future, a restrictive list of jobs in the public service for which foregoing expression of political opinion can be considered an inherent requirement.

Article 1(3). Protection against discrimination in employment and occupation. The Committee notes that the Labour Law refers in section 6 to the prohibition of discrimination in “employment and labour relations”. Recalling that, pursuant to Article 1(3) of the Convention, the terms “employment and occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, the Committee asks the Government to indicate whether the expression “employment and labour relations” used in the Labour Law covers these different aspects of employment and occupation, in particular access to vocational training, employment and particular occupations.

Articles 2 and 3. Measures to promote equality of opportunity and treatment of men and women. The Committee notes that the Government’s report refers to the website of the Mongolian Statistical Information Service for statistics disaggregated by sex regarding the labour force. The Committee notes from the 2019 Report of the National Gender Equality Committee that “women’s labour force participation is falling” and “average incomes are lower than men’s with no sign of increasing”. The report also indicates inter alia that: (1) “discrimination against women of reproductive-age in recruitment and employment continues and concentration of women and men in different sectors and occupations as well as their career promotion opportunities remain the same”; (2) “young women tend to fall victim to low quality education which fails to match labour market demand that leads to the horizontal gender disparity in employment in the years ahead”; and (3) “women’s entrepreneurship is further hampered by their limited land and property rights”. The Committee welcomes the Government’s indication in its 2020 report to the CEDAW that, within the framework of the implementation of the Action Plan of the National Program on Gender Equality (NPGE), the tasks to prepare the “Guidelines for Developing and Implementing Gender Equality Plans in Business Organizations”, to develop and approve a “Gender Sensitive Workplace Policy” were included in the National Tripartite Labour and Social Agreement for 2019-2020 (CEDAW/C/MNG/10, 4 May 2020, paragraph 20). In light of the above, in particular the findings of the National Gender Equality Committee, the Committee asks the Government to provide information on the implementation of the NPGE, in particular: (i) the measures taken to ensure that women have equal access to employment, including access to self-employment and entrepreneurship, and to promote their access to employment including through the development of their access to credit and land; (ii) the measures taken to address occupational gender segregation, including through vocational guidance and training, and (iii) any specific measures taken to address discrimination against young women at the recruitment stage. The Committee also asks the Government to provide information on the development and approval of the “Guidelines for Developing and Implementing Gender Equality Plans in Business Organizations” and the “Gender Sensitive Workplace Policy”, as well as information on their content and implementation.

Measures to promote equality irrespective of race, colour or national extraction. Ethnic minorities and indigenous peoples, including Tsaatans. With respect to the economic situation of Tsaatans, the Committee notes the Government’s indication that the provision of benefit equal to minimum subsistence level to Tsaatan citizens in Taiga was renewed and approved by the Regulation No. A/198 of Ministry of Labour and Social Protection, of 10 July 2018. The Committee notes however that the CERD, in its final observations, was concerned about “the low number of Kazakhs, Tuvas and Tsaatans (Dukhas) who have completed primary, secondary and higher education compared with the national average” and “the poor quality of education in the official language of the State party that is provided to ethnic minorities and indigenous peoples, which prevents them from accessing high-ranking positions in the administration and passing the entrance examinations for universities”. The CERD also noted “with concern the high unemployment rates of the Kazakhs, Tsaatans (Dukhas) and Tuvas compared with the national average” and was concerned “that ethnic minorities continue to face discrimination in accessing employment, including in public service in Bayan-Ulgii Province” (CERD/C/MNG/CO/23-24, paragraphs 19 and 21). The Committee asks the Government to provide specific information on the measures adopted to promote and ensure equality of opportunity and treatment of members of all ethnic and indigenous groups, including their right to engage without discrimination in their traditional occupations and livelihoods, with respect to access to vocational training and guidance, placement services, employment and particular occupations, and terms and conditions of employment.

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 asks the Government to provide information in response to the questions raised in that observation.

Persons with disabilities. The Committee welcomes the inclusion in the Labour Law of provisions regarding the duty on employers to provide employment opportunities to persons with disabilities (“developmentally challenged persons”), the employment quota (increased from 3 to 4 per cent for enterprises of 25 or more employees) and sanctions in a case of a failure to comply. The Government indicates that, by a Government Resolution of 2019, sanctions were also increased and differentiated according to the geographical location of the entities. With regard to the “Employment Promotion Program for Persons with Disabilities”, the Committee notes the Government’s indication that, in 2015-2020 (April), a total of 12.4 billion Mongolian tögrög (MNT) was allocated by the Employment Promotion Fund for the implementation of the which benefitted to 17,431 persons with disabilities of whom 3,609 found permanent jobs and 305 found temporary jobs. It further notes that a survey conducted in 2018 by the Research Institute of Labour and Social Protection among the entities identified the following reasons why persons with disabilities are not employed: lack of positions in which persons with disabilities can work; lack of skills meeting the requirements; and difficulty in adapting workplaces. The Committee asks the Government to continue to provide information on the legal and practical measures adopted to promote equal opportunities and to address the remaining barriers faced by persons with disabilities to accessing employment, in particular those identified in the 2018 Survey of the Research Institute of Labour and Social Protection.

Awareness-raising and enforcement. The Committee welcomes the Government’s indication that the Criminal Code was amended to include penalties for “discrimination based on origin, descent, colour, age, sex, social origin, wealth, job holding, position, religion, opinion, education, sexual and gender orientation, and medical condition”. It also notes that the Government indicates that there are no statistics available on the complaints filed with the Labour Dispute Settlement Commission and that training courses on the resolution of disputes were organized to improve the capacity of the social partners, including in the cooperation with the ILO. The Committee asks the Government to provide information on the measures taken to effectively implement and enforce the national legislation and to raise awareness of all forms of discrimination based on the grounds protected under the Labour Law, the Penal Code and the Convention. It also asks the Government to continue to provide specific information on: (i) the training activities carried out among law enforcement officials, workers and employers and their respective organizations, including on the remedies and procedures available; and (ii) the number, nature and outcome of any cases or complaints on discrimination in employment and occupation dealt with by labour inspectors, the courts or any other competent authorities.