Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 99th Session, June 2010)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2010 and the resulting conclusions of the Conference Committee, which addressed the following issues: (1) the new non-discrimination legislation; (2) the outstanding issues with regard to the follow-up to the representations under article 24 of the ILO Constitution (November 1991 and June 1994) regarding Act No. 451 of 1991 (the Screening Act); (3) the situation of the Roma in employment and occupation. The Committee notes that the Conference Committee requested the Government to provide full information on all the issues raised and urged it to accept an ILO technical assistance mission in order to enable it to bring its law and practice into conformity with the Convention without further delay. The Committee notes that a detailed report from the Government was received in November 2010 and a further report was received in September 2011. The Committee also notes that an ILO mission took place from 26–29 April 2011. The Committee notes the Government’s indication that the report of the mission and its conclusions were briefly discussed by the Working Group of the Council of Economic and Social Agreement for cooperation with the ILO on 24 August 2011 and would be submitted to the plenary session of the Council in October 2011.

The anti-discrimination legislation. The Committee notes that the Conference Committee urged the Government to provide full information on the new Anti-Discrimination Act (Act No. 198/2009) to the Committee of Experts to enable it to assess whether it provided adequate protection against discrimination on all the grounds enumerated in Article 1(1)(a) of the Convention, as well as on effective enforcement and monitoring mechanisms, and to ensure that the level of protection previously provided would not be decreased, in particular with respect to discrimination on the basis of family responsibilities, marital or family status or membership or activity in political parties, trade unions or employers’ organizations. The Committee recalls that the new Labour Code (Act No. 262/2006) prohibits all forms of discrimination in labour relations but does not specify any prohibited grounds, unlike the previous Labour Code which prohibited discrimination on the basis of sex, sexual orientation, racial or ethnic origin, nationality, citizenship, social background, family background, language, health condition, age, religion or confession, property, marital or family status, family responsibilities, political or other conviction, membership of or activity in political parties or movements, trade union or employers’ organizations. However, the new Anti-Discrimination Act prohibits direct and indirect discrimination based on race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or opinions. In addition, the Employment Act (No. 435/2004) prohibits any form of direct or indirect discrimination of persons exercising their right to employment on the same grounds as the former Labour Code.

The Committee notes from the 2010 Government’s report and the information provided to the mission that protection against discrimination is provided under the Constitution (articles 1, 4 and 10), the Charter of Fundamental Rights and Freedoms (articles 1 and 3) which forms part of the constitutional order under article 3 of the Constitution, the Labour Code, the Employment Act and the Anti-Discrimination Act. According to the Government, the Anti Discrimination Act, which was primarily adopted to implement European Directives on discrimination and equality, has to be read within the overarching framework of the constitutional legal order, in particular the Charter of Fundamental Rights and Freedoms, which contains an open list of grounds of discrimination. It is also possible to claim discrimination on the basis of the grounds that are not expressly covered by the Anti-Discrimination Act, by applying other legislation or international agreements which are directly applicable in the country according to the Constitution. According to the Czech-Moravian Confederation of Trade Unions (CMKOS), the removal from the Labour Code of the list of prohibited grounds and the narrower set of grounds prohibited under the Anti-Discrimination Act has resulted in diminishing the protection of workers against discrimination, in particular with respect to family responsibilities, marital or family status or membership or activity in political parties, trade unions or employers’ organizations. In addition, the CMKOS stated that the Government intended to revise the list of prohibited grounds in the Employment Act and reiterated this statement in the observations that were communicated with the Government’s report in September 2011. In this respect, the Government indicated that the amendment of the Employment Act had not yet been adopted and was envisaged with a view to avoiding unnecessary duplications in legislation and not to limiting the list of discriminatory grounds.

The Committee notes from the mission’s report that there is consensus that interpretation by the courts would be required to ensure clarity that all the prohibited grounds of discrimination contained in the various legal instruments can be directly invoked and are justiciable. The Committee also notes the mission’s recommendation that the tripartite constituents consider taking advantage of the legislative texts currently under consideration to include in the revision of the Labour Code the list of prohibited grounds currently in the Employment Act so as to ensure legal clarity and certainty concerning protection against discrimination in all areas of employment and occupation. The mission also recommended that promotional and awareness-raising tools be developed and disseminated to clarify the full list of grounds of discrimination that are prohibited under the existing constitutional legal order and the other legislative texts, and that appropriate training for all concerned should be given due consideration.

The Committee requests the Government to take the necessary measures, within the framework of the labour legislation reform, to include in the Labour Code a provision listing the prohibited grounds of discrimination to ensure legal clarity and certainty concerning protection of workers against discrimination in all areas of employment and occupation and to ensure that at least all the grounds previously enumerated are included. It also asks the Government to take appropriate measures to foster awareness of all the legal provisions on discrimination, including how they interact, and the legal procedures available for redress among workers, employers and their organizations, as well as labour inspectors, judges and officials dealing with non-discrimination and equality issues in employment and occupation. The Government is requested to provide information on any measures taken in this respect. Please also provide information on any administrative or judicial decisions applying and interpreting the legal provisions on discrimination in the field of employment and occupation, as well as on the practical application of the various non discrimination provisions, including how they interact.

Discrimination on the basis of political opinion. The Screening Act. With respect to the follow-up to the two representations under article 24 of the ILO Constitution (November 1991 and June 1994) regarding the Screening Act, the Committee notes that the Conference Committee, recalling its position and that of the Committee of Experts that the provisions of the Act violated the principle of non-discrimination on the basis of political opinion, contrary to the Convention, strongly urged the Government to amend or repeal the Act without further delay. The Committee recalls that in a judgment handed down in 1992, the Constitutional Court of the Czech and Slovak Republic stated that most provisions of the Screening Act were in conformity with Convention No. 111 and the State had the right to determine the requirements for appointment to high office and other functions of decisive importance in the interests of its own security. It notes further that, in a second judgment in 2002 by the Constitutional Court of the Czech Republic, the Court stated that the Act was setting prerequisites for working in State services and supplementing the absence of a law on civil service and therefore its existence was still necessary. The Committee notes the information provided in the Government’s report on the implementation of the Screening Act, including the statistical data on screening certificates issued from 2007–10.

The Committee notes that the ILO mission was provided with detailed information on the rationale for the adoption of this Act, in particular, the historical and political contexts which led to its adoption. Detailed information was provided to clarify the scope of application of the Screening Act, according to which the Act applies to limited categories of persons occupying managerial positions in the public service and state enterprises. The Committee also notes from the report of the mission that work is under way to adopt a new Public Service Law to replace the Service Act (Act No. 218/2002) that was adopted in 2002 but which has not yet entered into force. The Committee also notes the mission’s recommendation that the opportunity be taken in the context of the ongoing preparations for a new Public Service Law to clearly specify and define the functions in respect of which screening would be required, and be in accordance with Article 1(2) of Convention No. 111.

The Committee requests the Government to provide information on the measures taken to clearly specify and define the functions in respect of which screening would be required in the law that will be adopted on the public service. The Committee asks the Government to provide information on the progress made in drafting and adopting the new law, and to supply a copy of the law once it is adopted. It requests the Government to continue to provide information on the application of the Screening Act and the positions concerned, including statistical information on the screening certificates issued and the appeals lodged against a positive certificate.

The situation of the Roma in employment and occupation. The Committee notes that the Conference Committee, while noting that steps had been taken aimed at the social inclusion of the Roma, remained concerned that measures had not yet led to verifiable improvements for the Roma in employment and occupation and urged the Government to take measures to develop improved means to monitor the situation of the Roma, including through the collection and analysis of appropriate data, with a view to demonstrating the achievement of real progress with respect to equal access of the Roma to education, training, employment and occupation.

The Committee notes the detailed information in the Government’s report regarding various programmes and projects which are being implemented with a view to improving employment and education of members of the Roma community. It notes, in particular, the establishment of the Agency for Social Integration in Roma Localities created to ensure effectiveness of individual measures at the local level. The Committee also notes that a report on the situation of Roma communities in the country, including with respect to their situation in the labour market, is prepared annually and submitted to the Cabinet. According to the Government, in 2009, the report referred to the marginalization of Roma people on the labour market due to the economic crisis and emphasized the disadvantages suffered by members of this community, such as their lack of qualifications, their low level of education and their lack of professional experience. As a result, the issues identified were put on the agenda of the Government Council for Roma Community Affairs for action.

With respect to the collection of data to monitor the progress made regarding the situation of the Roma population in employment and occupation, the Committee notes from the report of the mission that, according to the Act on national census, the collection of data on ethnic origin should be voluntary and as a consequence there is no mandatory registration regarding Roma ethnicity. However, even though there is no empirical data, there is expert knowledge of the situation of the Roma population, through regional coordinators, and the number of people in the Roma community was estimated at 183,000 in 2010. The mission was also informed of a specific scheme developed by a non-governmental organization called “Ethnic Friendly Employer” which grants a label to enterprises employing members of ethnic minorities. The Committee notes that the mission recommended that proactive measures to promote social inclusion and tolerance be vigorously continued, in cooperation with employers’ and workers’ organizations, and that their impact be monitored.

The Committee requests the Government to step up its efforts to promote employment of the Roma population in the public and the private sectors, with a particular focus on the employment of Roma women, and to continue to take measures to promote equal opportunity in education and vocational training for Roma children and youth. It requests the Government to continue to assess the impact of the measures taken and to ensure that any progress made in the employment situation of the Roma population is not reversed by the economic downturn or the lack of appropriate funding, including with respect to the activities of the Agency for Social Integration in Roma Localities and the Government Council for Roma Community Affairs. The Committee also asks the Government to continue to take proactive measures to promote social inclusion and tolerance, in cooperation with employers’ and workers’ organizations, and to provide information on the “Ethnic Friendly Employer” scheme. Noting that a national census is taking place in 2011, the Committee requests the Government to provide statistics, disaggregated by sex, on the number of persons who identify themselves as members of the Roma community and their situation in employment, including self-employment, and any estimates thereof received from the regional coordinators for Roma affairs.

The Committee is also raising other points in a request addressed directly to the Government.