Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - China (Ratification: 2006)

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. The Committee recalls that there are a range of legislative provisions prohibiting discrimination in employment, including in the Labour Law, the Employment Promotion Law, the Law on the Protection of the Rights and Interests of Women, and the Regulation on Employment Service and Employment Management of 2008. The Committee recalls, in particular, that section 12 of the Labour Law and section 3 of the Employment Promotion Law provide that “workers seeking employment shall not be discriminated against in employment on the basis of factors such as ethnicity, race, sex or religious belief”. Regarding the Committee’s previous request for information on how workers are protected against discrimination based on colour, national extraction, social origin or political opinion, the Government merely refers to the legislative provisions on non-discrimination, none of which specifically refer to these grounds. The Committee recalls that when legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction and social origin. The Committee also recalls that the principle of equality of opportunity and treatment should apply to all aspects of employment and occupation, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (see Article 1(3) of the Convention). The Committee asks the Government to provide specific information on how workers are protected against discrimination at all stages of employment and occupation including on the grounds of colour, national extraction, social origin and political opinion, and whether any steps are being taken or envisaged to amend the existing legislation to prohibit discrimination expressly on these grounds.

Definition of discrimination. In its previous comments, the Committee noted that a definition of discrimination had not been included in any of the relevant laws or regulations. The Committee notes the Government’s indication that there is no distinction between direct or indirect discrimination in the legislation. The Committee recalls that the Convention covers both direct and indirect discrimination, which are distinct forms of discrimination. Indirect 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 particular characteristics (see General Survey on fundamental Conventions, 2012, paragraphs 743 and 745). The Committee asks the Government to provide information on how workers are protected against indirect discrimination in employment and occupation, and whether any steps are being taken or envisaged to include a definition of discrimination in the relevant laws and regulations, with a view to ensuring that workers are protected against both direct and indirect discrimination.

Article 1(1)(b). Additional grounds of discrimination. The Committee notes that section 19(2) of the Regulation on Employment Service and Employment Management of 2008 and a “Notice on Further Regulating the Medical Examination for Enrolment and Employment to Safeguard the HBsAg Carriers’ Rights to Education and Employment”, promulgated in February 2010, provide that employers shall not conduct tests for hepatitis B viral markers in medical examinations for employment. The Committee also notes the Government’s indication that the Government promotes the hiring of a certain proportion of persons with disabilities at all enterprises and institutions. The Government indicates that by the end of 2009, the number of persons with disabilities employed reached 4.434 million in urban areas, and 17.57 million persons with disabilities in the rural areas had found stable jobs. The Committee asks the Government to provide information on the practical application of the Notice on Further Regulating the Medical Examination for Enrolment and Employment to Safeguard the HBsAg Carriers’ Rights to Education and Employment, including any cases of violations detected by or reported to the competent authorities. It also asks the Government to provide information on any other measures taken to address discrimination based on disability, HIV and AIDS, hepatitis B and other infectious diseases.

Discrimination based on sex. Retirement age. The Committee notes the Government’s indication that the statutory retirement age is 60 for men, 50 for women generally but 55 for female civil servants. The Committee notes that the Government cites the result of a survey conducted by the Women’s Studies Institute of China, released in March 2011, indicating that there are differing preferences and attitudes as regards maintaining different retirement ages for men and women. The Government further indicates in its report of 2012 that relevant government departments are considering the adoption of 60 years or more as the unified retirement age for men and women, but that the Government has concerns that there will be strong opposition from society to the unified retirement age. The Committee recalls that differences in retirement ages between women and men can be discriminatory where the amount of the pension is linked to the length of contributory service, as women will receive a lower pension than men. Earlier retirement ages for women can also have a negative impact on women’s career paths and access to higher level positions (General Survey, 2012, paragraph 760). The Committee asks the Government to continue to provide information on the steps taken with a view to unifying the retirement age for men and women.

Sexual harassment. The Committee notes that section 11 of the Special Provisions on Labour Protection of Female Workers, which came into force on 18 April 2012, includes an obligation on the employer to prevent and prohibit sexual harassment against female workers at the workplace. The Committee asks the Government to provide information on the practical application of section 11 of the Special Provisions on Labour Protection of Female Workers of 2012, as well as section 40 of the Law on the Protection of Women’s Rights and Interests, including information on any cases of sexual harassment dealt with by the competent authorities. The Committee also asks the Government to indicate if any consideration is being given to expanding protection against sexual harassment at the workplace to male workers, as well as to including a definition of sexual harassment to ensure that it covers both quid pro quo and hostile environment harassment.

Discrimination based on pregnancy and maternity. The Committee again asks the Government to provide detailed information on the measures taken to address employment discrimination faced by women based on the fact that they bear children and are seen as primary caregivers, including measures to reconcile work and family targeting both men and women on an equal footing.

Discrimination based on social origin. The Committee recalls that discrimination and lack of equal opportunities based on social origin refers to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs. It may include household registration if privileges are attached to this registration (General Survey, 2012, paragraph 802). The Committee also recalls that the Committee on the Application of Standards of the International Labour Conference in 2009 requested the Government to report under the Employment Policy Convention, 1964 (No. 122), on the steps taken for the revision of the residence and work permit system for internal migrant workers. The Committee notes the Government’s indication concerning rural migrant workers that it has strengthened work safety and public health training, expanded social insurance coverage, and carried out supporting programmes. It also notes the Government’s indication under Convention No. 122 that it has abolished policies and regulations that restrict the rural labour force to be employed in urban areas and transregionally, and that it is steadily and proactively pushing forward the reform of the household registration system. The Committee asks the Government to continue to provide information on the specific measures taken to ensure the effective enforcement of section 31 of the Employment Promotion Law, including information regarding the number of cases of discrimination against workers from rural areas that have been dealt with by the competent authorities and the results thereof.

Article 2. Equality of opportunity and treatment between women and men. The Committee notes that in 2009 the Government issued a Notice on Implementing the Special Plan for Vocational Training for the period from 2009–10. The Committee also notes the Government’s indication that as a result of active employment policies to promote female employment including through tax exemption, post subsidies and vocational training allowances, by the end of 2009, over 358 million women were employed, accounting for 46 per cent of the entire working population. The Government also indicates that the small-sum secured loans became available for female workers in 2009, and the limit of small-sum secured loans for female workers was set higher than that for male workers. The Committee further notes the Government’s indication in the context of addressing occupational gender segregation that the Government has taken measures to support rural women to transfer to non-agricultural industries. The Committee requests the Government to continue to provide information on the specific measures taken to promote and ensure women’s equality of opportunity and treatment in employment and occupation in the private and public sectors, and in rural and urban areas. The Committee also asks the Government to provide detailed information on the measures taken to address horizontal and vertical occupational gender segregation, including under the Notice on Implementing the Special Plan for Vocational Training for the period from 2009–10, as well as on the concrete impact of the small-sum secured loans on promoting greater access of women to better-paid employment and occupations. Please also provide updated statistical information on the participation of women and men in employment in the different sectors and occupations.

Equality of opportunity and treatment of ethnic minorities. The Committee recalls that section 28 of the Employment Promotion Law and section 17 of the Regulation on Employment Service and Employment Management of 2008, provide that an employer shall give appropriate consideration to workers of ethnic minorities in recruitment, and that the Law on Regional Ethnic Autonomy seeks to promote training, education and access to employment of men and women of local ethnic minorities in the organs of self-government in autonomous areas. The Committee notes the Government’s indication that it has intensified its support to the socioeconomic development of the ethnic minority areas, including in the field of education. The Government indicates that 686 out of 699 counties in the ethnic autonomous areas had achieved nine-year compulsory education by the end of 2009, and met the target of virtually eradicating illiteracy among the young and middle-aged population. The remaining 13 counties had plans to meet these goals by 2010. The Committee asks the Government to continue to provide information on the practical application of the Employment Promotion Law and the Law on Regional Ethnic Autonomy in ensuring equality of opportunity and treatment of ethnic minorities in employment and occupation. Please also provide information on the current situation of the various ethnic minorities in employment and occupation inside and outside the autonomous regions, including employment data disaggregated by sex and ethnicity.

Article 5. Special measures of protection and assistance. The Committee recalls that provisions in a number of laws and regulations restrict the work that women can undertake. The Committee recalls in particular that section 26 of the Law on the Protection of Women’s Rights and Interests provides that women shall not be assigned to any work or physical labour not suited to them; section 13 of the Labour Law, section 27 of the Employment Promotion Law, section 3 of the Regulation on the Administration of Human Resources Markets, and section 16 of the Regulation on Employment Service and Employment Administration allow the State to determine the types of work and posts that are not suitable for women; section 59 of the Labour Law prohibits women working in mines or undertaking physically intense work as determined by the State, or “other work that female workers should avoid”. The Committee notes the Government’s indication that the Special Provisions on Labour Protection of Female Workers of 2012, repealing the Provisions on Labour Protection of Female Workers of 21 July 1988, sets out and updates the work prohibited for women. The Committee draws the Government’s attention to the detrimental effect such restrictions can have on the equality of opportunity and treatment of women in employment and occupation. The Committee recalls that protective measures that go beyond protecting maternity in the strict sense, but rather are aimed at protecting women generally because of their sex or gender, are contrary to the Convention and constitute obstacles to the recruitment and employment of women (General Survey, 2012, paragraph 838). While awaiting the translation of the Government’s new report and the Special Provisions on Labour Protection of Female Workers of 2012, the Committee asks the Government to indicate how it is ensured that any protective measures are strictly limited to maternity protection. Please also provide information on any measures taken pursuant to section 25 of the Employment Promotion Law to support and aid those who have difficulties getting jobs.

Parts III and IV of the report form. Supervision and enforcement. The Committee notes the Government’s indication that it has established 3,291 labour and social security inspection organs, with 23,000 full-time inspectors and 25,000 part-time inspectors. The Committee asks the Government to provide information on the supervision and enforcement of the non-discrimination provisions, including the possibility of workers bringing court cases and making requests for mediation or arbitration of labour disputes relating to discrimination. The Committee again asks the Government to provide information on the number, nature and outcome of complaints and cases of discrimination, originating from both the public and the private sectors, dealt with by the people’s courts and other dispute resolution mechanisms, including information on the remedies provided and sanctions imposed.