Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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)

In its previous comments, the Committee noted 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 anti-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); and (3) the situation of the Roma in employment and occupation. The Committee also noted that an ILO mission has taken place from 26–29 April 2011 and recommended inter alia that the tripartite constituents consider taking advantage of the envisaged revision of the Labour Code to include the list of prohibited grounds of discrimination 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 Committee also notes the observations from the Czech-Moravian Confederation of Trade Unions (CM KOS) attached to the Government’s report.

The anti-discrimination legislation. The Committee recalls that the Labour Code of 2006 (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 Anti-Discrimination Act (No. 198/2009 Coll.) prohibits direct and indirect discrimination based on race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or worldview. In addition, the Employment Act (No. 435/2004) prohibited any form of direct or indirect discrimination of persons exercising their right to employment on the same grounds as the former Labour Code, before its amendment by Act No. 367/2011. In this respect, the Committee notes that, according to the Government, this amendment replaced the list of prohibited grounds of discrimination by an explicit reference to the Anti-Discrimination Act. It also notes the Government’s indication that section 16 of the Labour Code was amended by Act No. 365/2011 Coll. which supplemented the provisions on equal treatment and prohibition of discrimination also with an explicit reference to the Anti-Discrimination Act. The Committee notes that the Government reiterates its position that the Anti-Discrimination Act has to be read in conjunction with the Charter of Fundamental Rights and Freedoms and international agreements which are directly applicable in the country according to the Constitution. It also notes the Government’s indication that the grounds of family responsibilities, marital status, pregnancy and parenthood may be covered by the ground of sex in the Anti-Discrimination Act, and that employees’ representatives are protected against discrimination by section 276 of the Labour Code. The Committee notes that as a result of the new legislative framework, workers are explicitly protected against discrimination only on the basis of race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or opinions, as provided by the Anti-Discrimination Act to which both the Labour Code of 2006 and the Employment Act now refer, thereby omitting the grounds of political conviction and membership or activity in political parties, trade unions or employers’ organizations which were previously expressly covered by the former Labour Code and the Employment Act. The Committee notes that the CM KOS indicates that it maintains its long standing observations regarding the limitation of the protection of workers against discrimination. The CM KOS indicates that this protection was further limited due to the amendment of the Employment Act in 2011 that removed the list of prohibited grounds of discrimination from its provisions and therefore the organization considers that the current legislation and practice are not in compliance with the Convention.

The Committee notes the Government’s indication that the State Labour Inspection Office issued leaflets for the public dedicated to the issue of discrimination. It notes however that these leaflets only mention the grounds of race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or worldview. The Committee notes the Government’s indication that further to the recommendations of the ILO mission, discussions are currently being held between the Ministry of Labour and Social Affairs, the Government Commissioner for Human Rights and the Ombudsperson to determine the appropriate means to ensure the enforceability and legal clarity and certainty concerning the right to non-discrimination, including with regard to legal procedures available to workers.

Noting the recent legislative developments, the Committee asks the Government to take the necessary measures to ensure the protection of workers against discrimination in training, recruitment, terms and conditions of employment, on the basis of all the grounds that were previously covered by the labour legislation. It also asks the Government to monitor closely the application of the Anti-Discrimination Act and the Charter of Fundamental Rights and Freedoms specifically in the field of employment and occupation as wells as the application of the Labour Code and the Employment Act in practice, particularly with regard to the possibility for workers to assert their right to non-discrimination and to obtain compensation, and to ensure that they provide adequate protection against discrimination based on at least all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee asks the Government to take the necessary measures to ensure that the material designed to foster awareness of the legal provisions on discrimination among workers, employers and their organizations, as well as labour inspectors, judges and other public officials dealing with non-discrimination and equality, indicates clearly the grounds of discrimination that are prohibited under the legislation, including those covered by the Charter of Fundamental Rights and Freedoms, and provide details on the procedure to follow. In this regard please also provide information on the number and nature of any administrative or judicial decisions applying and interpreting the legal provisions on discrimination in the field of employment and occupation, including the remedies provided and the sanctions imposed.

Discrimination on the basis of political opinion. The Screening Act. In its previous comments, the Committee noted that the Conference Committee has strongly urged the Government to amend or repeal the Screening Act without further delay in so far as it violated the principle of non-discrimination on the basis of political opinion. The Committee also noted that detailed information was provided to the ILO mission 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, and that work was under way to adopt a new Act on Civil Service. The Committee understands from the Government’s report that in the draft Act on Civil Service which is still under preparation, there remains a reference to the current provisions of the Screening Act as one of the “additional prerequisites” for a management position in the civil service, a high level position or a position of head of office of a regional self-government unit. The Government indicates that the Screening Act will not apply to “other employees”, as defined by the draft Act on Civil Service and excluded from its scope, performing auxiliary or manual work at public authorities or to employees supervising these workers. Further to the adoption of the Act on Civil Service, the list of persons subject to the Screening Act will be amended, using the same terminology. Recalling that political opinion may be taken into account as inherent requirements only for certain posts involving special responsibilities directly concerned with developing government policy, 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 Act on Civil Service and provide a copy of this Act once it has been adopted as well as a copy of the Screening Act once it has been amended. Noting the information provided in the Government’s report in this respect, the Committee requests the Government to continue to provide information on the application of the Screening Act, indicating specifically the positions for which a screening certificate was requested and issued, and the responsibilities directly concerned with developing government policy. Please provide statistical information on the number of certificates issued and the appeals lodged against a positive certificate.

The situation of the Roma in employment and occupation. The Committee noted in its previous comments that the Conference Committee remained concerned that the measures taken aimed at the social inclusion of the Roma had not yet led to verifiable improvements 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. The Committee welcomes the detailed statistics provided by the Government on the estimated numbers of members of the Roma community, disaggregated by region and sex. The Committee also notes the results of the 2011 national census according to which only 5,199 persons declared themselves as Roma whereas in 2010 the number of people in the Roma community was estimated at 183,000. The Committee notes that according to the statistics provided the estimated number of people from the Roma community registered by the Labour Office is quite low in comparison to the total Roma population (38,456 including 18,146 women). The Committee notes the detailed information provided by the Government regarding numerous projects and programmes of the Active Employment Policy and the reform of public employment services. The Committee notes with interest the approval of a comprehensive Strategy for Combating social exclusion for the period 2011–15 in September 2011, to support the social inclusion of people in “socially excluded localities” in which mainly members of the Roma community live. According to the strategy, approximately 80,000 persons are concerned by social exclusion in the country, 70,000 of which are from the Roma community. This Plan of Action which was prepared by the Agency for Social Inclusion, includes 77 measures in the fields of education, employment, housing, social services, family policy, healthcare, security and regional development, and will be implemented by the Government Commissioner for Human Rights. With regard to education, the Committee notes that the measures envisaged, including financial measures, aim at reforming the current educational system to end segregation and transform the system of schools established for pupils with mild mental disabilities. They also include measures to end discriminatory criteria for admission of children into public kindergartens which reduced the availability of such facilities for children from socially disadvantaged families, and measures to support inclusive education. The Committee also notes that 65 per cent of the persons from socially excluded localities receive social benefits and 75 per cent of them are non-active or unemployed and 11 per cent have occasional employment. The employment measures encompass the development of specific mechanisms to find employment, the implementation of a gradual employment scheme from the public service to the free labour market, the development of local employment networks and the implementation of tools for flexible employment and incentives for employers. Welcoming the numerous measures envisaged in the Comprehensive Strategy for Combating Social Exclusion (2011–15) to address comprehensively social exclusion and school segregation, which affects disproportionally the members of the Roma community, the Committee requests the Government to provide information on its implementation of the measures with regard to education, training, employment and occupation, in particular with regard to Roma girls and women, and the results thereof. In this regard, it requests the Government to continue to assess the impact of the measures taken and to ensure that any progress made in the education and 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 Government Commissioner for Human Rights and the Agency for Social Inclusion. The Committee requests the Government to take appropriate measures to address stereotypes and prejudices regarding the capabilities and preferences of the Roma and to promote respect and tolerance between all sections of the population. Please also provide information on the implementation and results of the “Ethnic Friendly Employer” scheme.

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