Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Georgia (Ratification: 1993)

The Committee notes the observations of the Georgian Trade Unions Confederation (GTUC), dated 26 September 2014, 2 March 2015 and 3 October 2016, which address similar issues related to the application of the Convention, as well as the responses of the Government, dated 20 November 2015, 16 December 2016 and 8 November 2017.

Article 1 of the Convention. Legislative developments. The Committee notes that the Law on the Elimination of All Forms of Discrimination, adopted on 2 May 2014, defines and prohibits 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, including language, age, citizenship, origin, place of birth or residence, property, ethnic origin, profession, marital status, health disability, sexual orientation, gender identity and expression, opinions and “other characteristics” (sections 1 and 2(1)–(4)). The Law also prohibits incitement to discrimination. The Committee further notes that the process of revision of the Labour Code is ongoing. The Government indicates that further legislative steps are being taken to bring the legislation into line with the relevant European Council Directives on equal treatment. The amendments will affect several Acts, including the Labour Code, the Law on the Public Defender, the Law on the Elimination of All Forms of Discrimination and the Law on the Public Service. The Committee asks the Government to consider taking the opportunity presented by the review and 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, and to provide information on the progress made in this regard.

Article 1(2). Inherent requirements of the job. The Committee notes that section 4(9) of the Law on the Elimination of All Forms of Discrimination 2014 provides that differential treatment, 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 recalls 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. The Committee asks 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 section 4(9) of the Law on the Elimination of All Forms of Discrimination.

Indirect discrimination. Objective circumstances. The Committee notes that the GTUC refers to section 6(12)(e) and section 37(1)(n) of the Labour Code which provide that an employment contract can be concluded for a fixed term of less than one year where there are “objective circumstances”, and that employment relations can be terminated in the case of “objective circumstances”. According to the GTUC, employers have used short term contracts as a means of discriminating on the basis of sex, trade union activities and political views. The Committee asks the Government to reply to the observations made by the GTUC regarding the discriminatory use of fixed-term contracts.

Article 2. Equality of opportunity and treatment of ethnic minorities. In its previous comments, the Committee noted the under-representation of ethnic minorities in state institutions and the state administration and public institutions, and requested information on the steps taken to formulate and implement an equality policy, in cooperation with workers’ and employers’ organizations, to ensure equal opportunities and treatment of ethnic minorities and to combat ethnic discrimination in employment and occupation. The Committee notes from the Government’s report that some steps are being taken to promote civic integration and to improve the representation of ethnic minorities: for example, a coordination council of ethnic minorities was set up in the Tbilisi City Council. However the Committee notes that, according to the Office of the Public Defender, this has not led to the improved representation of ethnic minorities in public institutions and their representation in Tbilisi governance institutions remains a problem. The Committee asks the Government to step up its efforts 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. The Committee 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 asks the Government to 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.

Article 3(e). Access to vocational education and training. The Committee also notes that the 2014–16 National Plan for Gender Equality includes measures to promote gender equality in vocational education and training institutions, particularly in the areas of science, technology, engineering and mathematics. The Committee also notes the extensive information provided by the Government regarding the national vocational training and education programme and that one of the objectives of the Vocational Education and Training Development Strategy 2013–20 is to provide equal opportunities for all. In this regard, the Government reports that, according to statistics for 2013–15, in most regions the students in vocational education and training colleges were mostly men. The Committee also notes the Vocational Education and Retraining Programme for Jobseekers and the Enhancement of Qualifications (Ordinance No. 238 of 2 June 2016). Recalling that access to education and to a wide range of vocational training courses is of paramount importance to achieve equality in the labour market, the Committee asks the Government to provide information, including statistics disaggregated by sex and for the different minority groups, on the specific steps taken and the results achieved under the different strategies and programmes to promote equal opportunities for all groups in society. The Government is also asked to indicate the results achieved under the 2014–16 National Plan to promote gender equality in the areas of science, technology, engineering and mathematics, and to specify the number of men and women participating in these courses over time.

Article 5. Protective measures. In its previous comments, the Committee noted that the Ministry of Labour, Health and Social Affairs was envisaging a review of Decree No. 147 of 3 May 2007 which contains an extensive list of “hard, hazardous and dangerous jobs” to which pregnant or nursing women cannot be recruited (section 4(5) of the Labour Code). The Committee notes that the Government’s report does not contain information on any developments in this regard. Considering the observations of the GTUC and the Office of the Public Defender on prevailing stereotypes regarding women’s preferences, suitability and ability to perform certain jobs, the Committee asks the Government, when reviewing the list of jobs under Decree No. 147 of 2007, to ensure that the limitations on the work that can be undertaken by pregnant or breast-feeding women do not go beyond what is needed to protect maternity in the strict sense, and are not based on stereotyped perceptions regarding the capacity and the role of women in society. The Committee also asks the Government to ensure that in practice such provisions do not limit the access of women to employment in general, and to provide information on the progress made in this regard.

Enforcement. The Committee notes that in 2015 the Government initiated the National Programme on Monitoring Labour Conditions (Ordinance No. 38 of 5 February 2015) and established the Department for Inspection of Labour Conditions (Ordinance No. 81 of 2 March 2015). The Committee refers to its comments on the Equal Remuneration Convention, 1951 (No. 100), and notes the GTUC’s observations that the Programme does not refer to employment conditions as such. The GTUC also refers to statistical data showing that, of the 1,267 lawsuits on labour issues before the courts in 2013, only 70 concerned health and safety issues; other issues also included discrimination. The Committee recalls that the Office of the Public Defender has raised issues regarding the non mandatory character of the recommendations made by the Department of Inspection. The Committee refers to its comments on Convention No. 100 and asks the Government to take the necessary measures to ensure the effective enforcement of the anti-discrimination legislation in employment and occupation, and to indicate how the Department for Inspection of Labour Conditions will ensure that the anti-discrimination provisions of the Labour Code are applied. The Committee also asks 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 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. The Committee notes that section 402(3) of the Labour Code provides that the burden of proof for claims of anti-union discrimination (section 402(1)) or termination of employment on prohibited grounds of discrimination (section 37(3)(b)) rests with the employer, if an employee establishes circumstances which provide reasonable cause to believe that the employer acted in breach of section 402(1) or section 37(3)(b). The Committee further notes that more generally section 8(2) of the Law on the Elimination of All Forms of Discrimination of 2014 provides for the shifting of the burden of proof after a complainant has provided the facts and relevant evidence to the Office of the Public Defender giving grounds for suspecting that discrimination has occurred. It also notes from the GTUC’s observations that discrimination against women in labour relations is under-reported due to fear of retaliation and difficulties regarding the burden of proof. 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 asks the Government to indicate whether, in the context of the ongoing reform of the Labour Code, any consideration has been given to amending the provisions in the Labour Code to allow for the shifting of the burden of proof in cases of discrimination relating to other aspects of employment, including recruitment, conditions of work, promotion and advancement.