Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Mongolia (Ratificación : 1969)

Previous comment

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication, in its report, that the National Committee on Gender Equality (NCGE) carried out several awareness-raising and training activities on the prevention of sexual harassment in both the public and private sectors. It further notes, from the 2022 Government’s report on the implementation of agreed conclusions on "women’s economic empowerment in the changing world of work” submitted to the UN Women, that, in 2021, the Ministry of Labour and Social Protection, the National Human Rights Commission, the Mongolian Trade Union Confederation, and the Mongolian Employers' Federation jointly defined the rights and responsibilities of stakeholders regarding sexual harassment in the workplace, through "model standards” fostering a sexual harassment free work environment and providing guidance to employers, in both the public and private sectors, on internal regulations for preventing sexual harassment in the workplace and addressing complaints. The Committee welcomes this information and observes that, in the framework of the Cross-Sectoral Strategic Plan for Promoting Gender Equality in Mongolia (2022–31), the Government intends to conduct an assessment on the implementation of these model standards and provide necessary methodological support (objective 2.1.4). The Committee notes that the Government acknowledges that the main discrimination faced by young women is violence and sexual harassment in the workplace, and recommends that the Government include the prevention of sexual harassment in orientation training programmes for first-time employees. It notes from the Government’s report, that, in 2022, 37 cases of sexual harassment at work were examined by the courts, on the basis of section 6.26 of the Law of Infringement of 2020 which establishes penalties of imprisonment or a fine, for perpetrators of sexual harassment at work or failure of employers to prevent and address sexual harassment in its internal regulations. In that regard, the Committee notes that, in its 2022 report, the United Nations (UN) Special Rapporteur on violence against women, its causes and consequences expressed concern about: (1) the fact that harassment in the workplace seems to be a widespread issue, with few cases reported or leading to responses by the authorities; (2) the extent of harassment against girls and women in school environments and at universities; and (3) the persistent harmful stereotypes about sexual harassment in particular, resulting in victims being blamed for the violence they experience (A/HRC/50/26/Add.1, 20 April 2022, paragraphs 16, 55 and 66). Similar concerns were expressed by both the UN Committee on the Elimination of Discrimination against Women (CEDAW) and the UN Committee on Economic, Social and Cultural Rights (CESCR), in their 2022 concluding observations (CEDAW/C/MNG/CO/10, 12 July 2022, paragraphs 28 and 30; and E/C.12/MNG/CO/5, 10 November 2022, paragraph 24 respectively). Welcoming the measures taken and envisaged, the Committee asks the Government to continue to take steps to ensure that workers, in particular young workers, are effectively protected against all forms of behaviours with a sexual connotation amounting to sexual harassment. It asks the Government to provide information on: (i) the measures taken, in particular by the National Committee on Gender Equality to prevent and combat sexual harassment in educational facilities and at work, including by raising awareness among the public, workers and employers and their organizations, and law enforcement authorities, about all forms sexual harassment; (ii) any assessment made of the impact of these measures, in particular regarding the employers’ obligation to put in place procedures to prevent and address sexual harassment in their internal regulations, including as a result of the Cross-Sectoral Strategic Plan for Promoting Gender Equality (2022–31); and (iii) the number, nature and outcome of cases of sexual harassment dealt with by the labour inspectorate, the National Human Rights Commission, the courts or any other competent authorities.

Retirement age. Observing that the Law on Pensions and Benefits provided by the Fund of Social Insurance of 1994 was revised in 2023, the Committee notes with regret that the Government did not take this opportunity to harmonize the retirement ages for men and women. Indeed, it notes that section 5.1.2 of the new law, adopted on 7 July 2023, again provides that men are eligible for a retirement pension on attainment of 60 years of age, while women are eligible for a retirement pension on attainment of 55 years of age, when they are not subject to any special early retirement rules. In that regard, the Committee further notes that, in its 2022 concluding observations, the CEDAW expressed concern about the early retirement age for women, limiting their employment opportunities and reducing their pension benefits (CEDAW/C/MNG/CO/10, 12 July 2022, paragraph 30). The Committee asks the Government to indicate any measures taken or envisaged, both in law and practice, to ensure that the working life of women is not shortened in a discriminatory manner and to provide information on any steps taken in this regard.

Articles 1(1)(b) and 5(2). Additional grounds of discrimination. Affirmative measures. Persons with disabilities. The Committee notes the Government’s statement that: (1) pursuant to section 144.5 of the Labour Law, as revised in 2021, the procedure for imposing fines on employers who fail to comply with the employment quota of 4 per cent of persons with disabilities (for enterprises of 25 or more employees) was approved by the Government’s Resolution No. 253 of 2022; and (2) measures are being taken to ensure its implementation. The Committee also notes that, according to ILOSTAT, in 2022, the unemployment rate of persons with disabilities was as high as 10.8 per cent compared to 6.2 per cent for persons without disabilities. It further notes in its 2023 concluding observations, that the UN Committee on the Rights of Persons with Disabilities (CRPD) expressed concern about: (1) the persistence of a system of special education and the lack of resources in mainstream schools to support inclusive education, which results in a large number of children with disabilities receiving segregated education; (2) the lack of specific measures to ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination, on an equal basis with others; and (3) persons with disabilities, in particular women, being continually excluded from the open labour market and from starting a business. The CRPD specifically recommended that the Government repeals all discriminatory legislation that excludes or limits the participation of persons with disabilities in the open labour market; adopt effective measures to ensure the right of all persons with disabilities to work, as well as measures to combat discrimination, particularly in relation to advertisements, recruitment processes, retraining, promotion and other rights related to work and employment; and strengthen the implementation of the Labour Code (CRPD/C/MNG/CO/2-3, 5 October 2023, paragraphs 47, 53 and 54). Noting that the National Programme on Rights, Participation and Development of Persons with Disabilities ended in 2021, the Committee asks the Government to provide information on: (i) any legal and practical measures adopted to promote equality of opportunity and treatment of persons with disabilities and address the remaining barriers they face in accessing training and employment; (ii) any assessment made of the impact of these measures, in particular regarding the implementation and enforcement of the employment quotas; and (iii) the employment rates of men and women workers with disabilities in both the public and private sectors.

Article 1(1)(b). Sexual orientation and gender identity. Recalling that section 6.1 of the Labour Law prohibits direct and indirect discrimination based on, among others, sexual orientation or gender identity, the Committee notes that, in its 2022 concluding observations, the CESCR expressed concern about reports that discrimination, stigmatization and harassment against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons is widespread, including in employment and education, and indicated that, in spite of the prohibition of discrimination based on sexual orientation and gender identity, victims of such discrimination face challenges in gaining access to justice (E/C.12/MNG/CO/5, 10 November 2022, paragraph 18). The UN Special Rapporteur on violence against women, its causes and consequences expressed similar concerns in its 2022 report (A/HRC/50/26/Add.1, 20 April 2022, paragraphs 31 and 62). The Committee asks the Government to provide information on: (i) any measures taken to prevent and address stigma and discrimination based on sexual orientation and gender identity in employment and occupation, including through combatting stereotypes and stigmatization, and the impact of these measures; and (ii) the number, nature and outcome of any cases of discrimination in employment and occupation based on sexual orientation and gender identity dealt with by the labour inspectorate, the courts or any other competent authorities.

Article 1(2). Inherent requirements of the job. Civil service. The Committee notes the Government’s indication that “core civil service” positions, to which the prohibition for expressing political views apply, are defined by the Civil Service Law of 2017 as public administration and special state service positions (sections 10.1 and 10.3 of the Law). In that regard, the Committee notes that: (1) public administration positions, enumerated under section 12 of the Law, are aimed at “providing professional advice for developing public policies, providing public administration management and organizational support for the implementation of such policies”; and (2) special state service positions, enumerated under section 13 of the Law, are aimed at “ensuring the national security and public safety, maintaining social order and the core principle of the rule of law”, and include judges. The Committee observes that an extensive number of civil service positions are included under “core civil service” and that “core civil servants” are explicitly prohibited from being a member of a political party, or to participate, in any form, in activities of political parties and movements, non-governmental or religious organizations affiliated with political parties, unless permitted by laws. For a member of a political party, a formal and written declaration of suspension of the party membership shall be produced and submitted to the administration of the organization and to the affiliated party within seven days after appointment to a civil service position. Disciplinary measures, including dismissal, can be imposed on “core civil servants” that would breach such prohibition as well as possibly criminal charges (sections 37.1.4; 37.1.5; 39.1.5; and 48 of the Law). In this regard, the Committee recalls that, under Article 1(2) of the Convention, political opinion may be taken into account as an inherent requirement of a particular position involving special responsibilities in relation to developing government policy, which is not the case in respect of the above-mentioned sections of the Civil Service Law that broadly define “core civil servants”. Recalling that the concept of inherent requirements must be interpreted restrictively so as to avoid an undue limitation of the protection against discrimination provided by the Convention, the Committee asks the Government to take the necessary measures to review sections 37.1.4, 37.1.5 and 39.1.5 and 48 of the Civil Service Law or adopt a more restrictive list of jobs in the public service to which these sections applies. It further asks the Government to provide information on: (i) the number of any persons dismissed or whose application for such positions has been rejected pursuant to the above-mentioned sections of the Civil Service Law; (ii) the reasons for these decisions and the functions concerned; and (iii) the appeal procedure available to the affected persons and any appeals lodged and their results.

Equality of opportunity and treatment irrespective of race, colour and national extraction. 1. Ethnic minorities and indigenous peoples, including Tsaatans. The Committee notes the Government’s statement that some progress has been made regarding education of the Mongolian population as a whole, whose literacy rate has now reached 98.7 per cent, that also benefitted ethnic minorities. The Government adds that between 2018 and 2020, 36 scholarships were awarded by the Education Loan Fund to Tsaatan students studying in a bachelor’s programme. The Committee however observes that no information was provided on the impact of such measures, to enable it to assess the application of the Convention, in practice, with respect to ethnic minorities and indigenous peoples. The Committee again asks the Government to provide information on: (i) 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, as well as terms and conditions of employment; (ii) any assessment made of their impact; and (iii) the participation rates of ethnic minorities and indigenous peoples in education, vocational training and employment.

2. Migrant workers. Referring to its previous comments regarding substandard working and living conditions of migrant workers, the Committee notes with regret that the Government does not provide any information in that regard. The Committee further refers to its 2022 observation made on the application of the Forced Labour Convention, 1930 (No. 29) regarding the abusive working conditions of migrant workers that could amount to the exaction of forced labour. The Committee again asks the Government to provide information on: (i) any measures implemented to ensure that migrant workers are protected against discrimination based on race, colour and national extraction in employment and occupation; and (ii) the number, nature and outcome of cases of discrimination against migrant workers detected or reported to the labour inspectorate, the courts or any other competent authorities.

Awareness-raising and enforcement. The Committee welcomes the Government’s indication that several activities, including training activities have been implemented to raise public awareness and provide clarifications on the Labour Law, as revised in 2021, including with the assistance of the ILO. It notes with interest the Government’s indication that, by order No. A/54 of 27 April 2023 of the Minister of Labour and Social Protection, the checklist for supervising the implementation of the Labour Law was newly approved, and it is now possible to check the implementation of section 6 of the Labour Law by verifying whether the organization's internal labour standards are discriminatory or provide preferential treatment (inspection sheet 07.1.1). The Committee notes that, in 2023, planned inspections were carried out in a total of 1,337 enterprises in sectors such as mining, construction, transport, processing plants, vocational training and production centres, with the use of the 07.1.1 inspection sheet. Observing that the Government does not provide information on the outcome of these inspections, the Committee notes the Government’s statement that it is plans to monitor the implementation of the Labour Law in 2024–25. The Committee asks the Government to continue to provide information on: (i) the activities taken to prevent and address discrimination in employment and occupation, including by raising public awareness of and providing training on the relevant legislative provisions, the procedures and remedies available; (ii) the results of the assessment regarding the implementation of the Labour Law planned in 2024–25 with respect to discrimination; and (iii) the number, nature and outcome of cases of discrimination in employment and occupation dealt with by the labour inspectorate, the National Human Rights Commission, the courts or any other competent authorities.