Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Turkmenistan (Ratification: 1997)

Article 1(1)(a) of the Convention. Prohibition of discrimination. Definition. The Committee previously noted that section 7 of the Labour Code protects workers against discrimination in employment. It requested the Government to clarify whether this protection applies to all workers, including civil servants, and all aspects of employment, including vocational training, recruitment and terms and conditions of employment. The Government referred to the provisions of the Civil Service Act and the Employment Act to explain that workers, including civil servants, are protected from discrimination in employment and occupation. However, the Committee was not able, from the report alone, to assess the scope of the protection afforded by these legal texts. The Committee further notes the absence of any information indicating whether section 7(1) of the Labour Code covers both direct and indirect discrimination. It recalls that indirect discrimination is when the same conditions, treatment or criteria are applied to everyone, but result in a disproportionately harsh impact on specific groups or individuals with certain characteristics, and are not closely related to the inherent requirements of the job. Such discrimination is subtle and less visible, making it even more important to ensure that there is a clear framework for addressing it, and proactive measures are required to eliminate it (see General Survey on the fundamental Conventions, 2012, paragraphs 744–746). The Committee requests the Government to indicate:

• (i) how and by what provisions of the Labour Code it is ensured that protection against discrimination applies to all workers and all aspects of employment, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, as provided for in Article 1(1)(a) of the Convention;
• (ii) whether the non-discrimination provisions apply to all workers, including civil servants, and cover at least all the grounds enumerated in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction or social origin; and
• (iii) whether section 7(1) of the Labour Code includes a prohibition on indirect discrimination.

Discrimination on the basis of sex. Sexual harassment. The Committee notes that section 16 of Act No. 154 on state guarantees for equal rights for women, protects women against sexual assault, abduction and human trafficking, and that section 137 of the Criminal Code prohibits coercion to engage in acts of a sexual nature. However, it remains unclear whether there are any legal provisions currently in force directly addressing the issue of sexual harassment at work. The Committee wishes to point out in this respect that addressing sexual harassment only through criminal proceedings is normally insufficient, due to the sensitivity of the issue and the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not on the full range of behaviour that constitutes sexual harassment in employment and occupation (see the 2012 General Survey, paragraph 792). The Committee also notes the Government’s indication that there are no statistics on crimes committed under section 137 of the Criminal Code because they are prosecuted privately and that there has been no reported case of sexual harassment. The Committee requests the Government to take the necessary measures to ensure that all workers are protected in law and practice against all forms of sexual harassment in employment and occupation, and to provide adequate means of redress. It requests the Government to provide information on the measures taken in this respect, including on the relevant laws or regulations adopted. In the meantime, the Committee requests information concerning any measure taken to prevent and eliminate sexual harassment in the workplace (educational programmes, awareness-raising campaigns, etc.).

Article 1(2). Inherent requirements of a particular job. The Committee recalls that under section 7(2) of the Labour Code, “any distinction in employment justified by inherent requirements of the job … is not considered to be discrimination”. The Committee notes that the Government has not provided examples of the practical implementation of this provision, nor any judicial decision interpreting the concept of “inherent requirements of the job”. The Committee recalls that the concept of “a particular job” refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by the characteristics of the particular job, and be in proportion to its inherent requirements, and must be interpreted restrictively (see also the General Survey of 1988 on equality in employment and occupation, paragraphs 125–127). The Committee therefore requests the Government to provide examples of the practical application of this provision, including any judicial decisions interpreting the concept of “inherent requirements of the job”.

Article 2. Equality of opportunity and treatment of men and women. The Committee recalls that under section 12 of Act No. 154 on state guarantees for equal rights for women, any discrimination against women is prohibited. From the statistical data provided, the Committee notes that in 2013 women represented 20.3 per cent of the people entering basic vocational education, 47 per cent of those entering secondary vocational education and 34.3 per cent of those entering higher vocational education. The Government further indicated that women represented 50.2 per cent of the employed, but only 42.3 per cent of the economically active population. It notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) continued to express serious concerns about the attitudes and deep-rooted stereotypes regarding the roles and responsibilities of women and men in all spheres of life, and was concerned by the Government’s limited efforts to tackle discriminatory practices (CEDAW/C/TKM/CO/3-4, 9 November 2012, paragraph 20). Indeed, the Committee notes from the Government’s report that women work predominantly in the education and health sectors, and that gender discrimination persists in both access to employment and terms and conditions of work. The Committee therefore requests the Government to take practical measures to combat sexist stereotypes relating to the roles and skills of men and women in employment and in society, and to effectively promote access by women to a wider range of occupations, including awareness-raising activities and educational programmes on gender equality, and to provide information in this regard. Please continue to provide updated statistical data, disaggregated by sex, on the situation of men and women in Turkmenistan.

Further, the Committee recalls that Chapter I of Part XIII of the Labour Code contains measures applying to persons with family responsibilities, including measures concerning women workers with children, such as the prohibition of overtime, night work, work during public holidays, and weight and travel restrictions. While the Committee understands that these measures are motivated by the wish to protect women’s unequal burden of family responsibilities and their health and safety, it recalls that protective measures applicable to women’s employment which are based on stereotypes regarding women’s professional abilities and role in society are in violation of the principle of equality of opportunity and treatment of men and women in employment and occupation. The Committee further recalls that such provisions may have the effect of excluding men with family responsibilities from certain rights and benefits. In this regard, the Committee notes that, under section 249 of the Labour Code, men with family responsibilities are only granted the same rights if they are responsible for children without a mother. Noting that the Government’s report does not contain any information in this regard, the Committee once again requests the Government to elaborate on its views concerning the compatibility of these provisions with the principle of equal opportunity and treatment. The Government is also requested to indicate any measures taken, in practice, to ensure that arrangements and entitlements aimed at reconciling work and family responsibilities are made available to women and men on an equal footing.

Article 2. Equality of opportunity and treatment with respect to grounds other than sex. Noting the absence of information in the Government’s report, the Committee requests the Government to provide full particulars on the concrete measures taken to ensure and promote in practice equality of opportunity and treatment in all aspects of private and public employment, including recruitment, without distinction based on the grounds of race, religion and national extraction. The Government is also requested to provide detailed information on any restrictions that may be imposed in practice on members of national and ethnic minorities with respect to access to education, training and employment in both the private and the public sectors, and on the concrete measures taken to ensure their protection against direct and indirect discrimination in employment and occupation. Please provide statistical information on the participation of members of minorities in the labour market (public and private sectors) and all levels of education.

Article 3(a). Cooperation with workers’ and employers’ organizations. The Committee notes the Government’s indication that regular monitoring of trade union activities takes place to ensure compliance with labour law and occupational safety rules. However, the Government did not explain how it ensures that the social partners are made aware of, and promote equality of, treatment and opportunity at work. The Committee therefore requests the Government to provide detailed information on the steps taken in practice to seek the cooperation and observance of a policy promoting equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Article 5. Special measures of protection. The Committee noted previously that, in accordance with section 7(2) of the Labour Code, any distinction in employment justified by particular state policies on categories of people who need increased social and legal protection (women, minors, disabled persons and others) established by law is not considered to be discrimination. The Government indicates in its report that this includes the protection of motherhood and the ban on women’s, youth and children’s employment in particular types of work. It further indicates that it is in the process of drafting a list of jobs with particular working conditions, in which the employment of women and people under the age of 18 is prohibited or restricted, and specifying the maximum weight that may be carried or transported by these categories of workers. The Committee recalls that, when provisions relating to protective measures for women are considered, a distinction should be made between special measures to protect maternity, as envisaged in Article 5, and measures based on stereotypical views of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment. The Committee requests the Government to consider amending the provisions of the Labour Code to ensure that the special measures for the protection of women are limited to what is strictly necessary to protect maternity, and to provide information on any measures taken in this regard. The Committee requests the Government to provide detailed information on the list of jobs with harmful working conditions prohibited for women referred to in section 243 of the Labour Code, established by decision of the Cabinet of Ministers.

Parts III–V of the report form. The Committee recalls that, in accordance with section 404 of the Labour Code, the enforcement of the labour legislation is entrusted to a specialized public body, trade unions, technical and labour inspectorates, local governments and responsible ministries. The Committee once again requests the Government to provide concrete information on the enforcement activities undertaken by these bodies and organizations with respect to discrimination in employment and occupation. Please also provide information, including studies and official reports, as well as statistics disaggregated by sex, which could help the Committee to gain a general appreciation of the application of the Convention.