Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kyrgyzstan (Ratification: 1992)

The Committee notes with concern that the Government’s report contains no reply to its previous comments. It expects that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 1 of the Convention. Prohibition of discrimination. The Committee notes 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 also notes that section 9(1) of the Labour Code of 4 August 2004 provides that each person shall have equal possibilities to exercise labour rights and freedoms, and that section 9(2) provides that no one must be limited in their labour rights or be privileged in the exercise of such rights due to specified grounds. A wide range of grounds of discrimination are enumerated in section 9(2) of the Labour Code, namely, sex, race, ethnicity, language, origin, property and official status, age, place of residence, religion and political convictions, membership in public organizations, or other circumstances irrelevant of professional capacities and the results of work done by the employees. The Committee asks the Government to provide specific information on the extent to which section 9 of the Labour Code covers both direct and indirect discrimination, and all stages of the employment process, including vocational training, access to employment and particular occupations, and terms and conditions of employment. It also asks the Government to clarify whether “origin” covers “social origin” and “national extraction”, and to indicate the measures taken or envisaged in law and in practice to address discrimination on the grounds of colour, national extraction or social origin. Please also provide information on the practical application of section 9 of the Labour Code.

Scope of application. The Committee notes that pursuant to section 6(6) of the Labour Code, certain groups of workers, including those in the military in the course of military service, and persons contracted on a civil law basis, are excluded from the scope of the Code, including the protection against discrimination set out under section 9. It also notes that the Government’s report does not contain information on the public sector. The Committee asks the Government to provide information on the measures taken or envisaged to ensure that those groups of workers excluded from the protection against discrimination set out in the Labour Code, obtain such protection in law and in practice. It also asks the Government to provide information on the protection against discrimination provided to workers in the public sector, including those covered under Act No. 114 of 11 August 2004 on the Public Service. Please also provide the details regarding which workers are considered to be “contracted on a civil law basis”.

Discrimination based on sex. The Committee notes that section 16(4) of the Constitution provides for equal rights and freedoms and equal opportunities to exercise them for men and women. It also notes that the Act on Gender Equality of 31 January 2003 provides for the definition of “overt” and “hidden” gender discrimination (section 1), and for the prohibition of both “overt” and “hidden” gender discrimination (section 6). The Committee notes that “hidden gender discrimination” is defined as “discrimination without directly referring to a person’s sex” (section 1). The Committee notes that this definition is narrower than the concept of indirect discrimination, which 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 fundamental Conventions, 2012, paragraphs 743 and 745). The Committee asks the Government to indicate any steps taken or envisaged to define indirect gender discrimination more explicitly in the Act on Gender Equality. It also asks the Government to provide information on the practical application of section 6 of the Act on Gender Equality, including any cases brought to the authorities specified in section 33 of that Act, and the outcome of these cases.

Sexual harassment. The Committee notes that sexual harassment is defined in section 1 of the Act on Gender Equality as “immoral conduct, or inadmissible sexual advances in respect of persons of both sexes, whether verbal (threats, intimidation, indecent remarks) or physical (touching, slapping), humiliating and insulting a person in a situation of professional, financial, family or other dependence”. This Act prohibits employers from pressuring or victimizing workers of either sex on account of their refusing the employer’s sexual harassment or filing a complaint of sex discrimination against the employer (section 22). The Committee recalls that given the gravity and serious repercussions of sexual harassment, it is important to take effective measures to prevent and prohibit sexual harassment at work, both quid pro quo and hostile environment sexual harassment (General Survey, 2012, paragraph 789). The Committee asks the Government to indicate the steps taken or envisaged to include in legislation a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment. It also asks the Government to indicate the measures taken to prevent and prohibit sexual harassment at the workplace by co-workers, as well as to raise awareness of employers and workers and their representatives regarding sexual harassment.

Exclusion of women from certain categories of work. The Committee notes that under the Labour Code, it is prohibited to employ women for “hard work and work under deleterious and/or dangerous conditions and underground, apart from non-physical work or sanitary and catering services, as well as work involving lifting and moving of heavy things exceeding limits established for such work” (section 303). The Committee recalls that protective measures applicable to women’s employment which are based on stereotypes regarding women’s professional abilities and role in society, violate the principle of equality of opportunity and treatment between men and women in employment and occupation. In addition, 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 (General Survey, 2012, paragraph 840). The Committee asks the Government to ensure that any measures limiting women’s access to employment and occupation are strictly limited to maternity protection, and to provide information on any steps taken in this regard.

National policy on gender equality. The Committee notes that section 7 of the Act on Gender Equality provides that the basic elements of State policy on ensuring gender equality are as follows: (i) establishment, improvement and development of a legal framework for ensuring gender equality; (ii) design and implementation of State targeted programmes aimed at achieving gender equality; (iii) protection of society against information, propaganda and agitation aimed at infringing gender equality; (iv) education and advocacy for culture of gender equality; and (v) compliance with generally recognized principles and rules of international law, as well as international obligations of the Government, concerning gender equality issues. The Committee asks the Government to provide information on the practical application of section 7 of the Act on Gender Equality, including details of programmes aimed at achieving gender equality, as well as the impact thereof.

Equal access to vocational training and education for men and women. The Committee recalls that providing vocational guidance and taking active measures to promote access to education and training, free from considerations based on stereotypes or prejudices, is essential in broadening the range of occupations from which men and women are able to choose (General Survey, 2012, paragraph 750). The Committee asks the Government to provide updated statistical information, disaggregated by sex, on the participation of men and women at all stages of education and various vocational training courses, as well as statistics on the number of men and women that have filled vacancies following such training, including for jobs traditionally held by the other sex. Please provide information on the measures taken to ensure equal access to vocational training and education for men and women.

Ethnic minorities. The Committee notes that the Constitution provides for the right to freely determine and state one’s ethnicity (section 38), and provides that special measures defined by law and aimed at ensuring equal opportunities for various social groups in accordance with international commitments shall not be considered as discrimination (section 16(2)(3)). The Committee asks the Government to provide information on the measures taken or envisaged to address discrimination and inequalities faced by ethnic or national minorities, including any affirmative action programmes or other measures put in place based on section 16(2)(3) of the Constitution, to increase the opportunities of ethnic or national minorities in education and vocational training as well as access to employment and occupation. Please provide updated statistical information on the participation of ethnic or national minorities at all stages of education and various vocational training courses, as well as in the various posts and grades both in the private and public sectors.

Article 3(a). Cooperation with workers’ and employers’ organizations. The Committee asks the Government to provide information on the measures taken to seek the cooperation of the social partners with regard to promoting equality of opportunity and treatment in employment and occupation. The Committee also asks the Government to indicate how the social partners are involved in efforts to promote the Act on Gender Equality.

Article 5. Special measures of protection. The Committee notes that under the Labour Code, female workers with children under 3 years of age are allowed to be sent on missions, or to engage in overtime work or night work only with the women’s consent (section 304(2)). The Committee recalls that when legislation 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). The Committee asks the Government to indicate any measures taken or envisaged to ensure that the entitlements under section 304(2) of the Labour Code are available to men and women on an equal footing.

Parts III to V of the report form. Enforcement. The Committee notes that under the Act on Gender Equality, procedures for acts of violations of gender equality, including sexual harassment, include filing reports with the specified authorities (section 33). State bodies, social organizations and other non governmental associations shall register violations of gender equality and provide information to the National Council on Women, the Family and Gender Development in order to monitor the situation with regard to ensuring gender equality (section 35(2)). It also notes that section 421(3)(4) of the Labour Code provides that workers claiming to have been subject to discrimination can seek redress through the courts. The Committee asks the Government to provide information on the number and nature of complaints lodged, as well as summaries of the decisions of particular relevance to the principle of the Convention. It also asks the Government to provide information on remedies provided or sanctions imposed under the procedures for examining violations of gender equality or after the registration of violations of gender equality pursuant to sections 33 and 35(2) of the Act on Gender Equality. Please also provide information on the measures taken to raise the awareness of workers, employers and their organizations on equality in employment and occupation, including information on any seminars or workshops, or on pamphlets and other materials disseminated or made available to the public on this subject.