Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

1. Article 1(1) of the Convention. Sexual harassment. Recalling its 2002 general observation concerning sexual harassment, the Committee notes the Government’s indication that section 170 of the Penal Code provides for criminal liability for sexual assault and violations of sexual freedom. It also notes from the Government’s report that criminal cases involving sexual harassment at work were very rare. It also notes that these provisions may not provide adequate protection from sexual harassment in the workplace, as the criminal burden of proof is very high, and certain practices may not amount to behaviour punishable under section 170 of the Penal Code, but nevertheless constitute discrimination on the basis of sex in the form of sexual harassment. The Committee, therefore, encourages the Government to take specific measures to define, prohibit and prevent sexual harassment in the workplace, taking into account the elements set out in the Committee’s general observation, and to keep the Committee informed of any measures taken or envisaged.

2. Direct and indirect discrimination. Recalling that section 14 of the Labour Code defines discrimination as the imposition of any restriction of labour rights or the granting of any favour on the basis of certain grounds, the Committee hopes that this provision will be applied to cover indirect discrimination. Noting from the Government’s report that efforts are under way to amend and supplement the Labour Code, the Committee recommends that section 14 be amended with a view to explicitly prohibiting indirect discrimination in employment and occupation.

3. Discrimination the ground of social origin. The Committee recalls its previous comments concerning the absence of the prohibited ground of social origin in section 14 of the Labour Code, and reiterates its request to the Government to consider making explicit reference to this ground in the legislation, in accordance with Article 1(1)(a) of the Convention.

4. Article 2. Gender equality in employment and occupation. The Committee notes from the Government’s report that the draft gender equality legislation envisaged in the National Plan of Action for Gender Equality was prepared by the Ministry of Labour and Social Protection in 2004. The Committee urges the Government to ensure that the new legislation will prohibit direct and indirect gender discrimination and promote gender equality in accordance with the Convention, and asks the Government to continue to provide information on the progress made in the adoption of the Act on Gender Equality, and to supply the text as soon as it is adopted. The Committee also requests the Government to continue to provide statistical information on the situation of men and women in the labour market, including sex-disaggregated data on labour force participation, training provided to unemployed persons, and the number of persons that re-entered the labour market following such training.

5. Equality of opportunity and treatment irrespective of race, national extraction and religion. The Committee thanks the Government for providing information on the activities of the Committee for Religious and Ethnic Affairs of the Council of Ministers to promote tolerance and prevent racial discrimination, including through law enforcement officials and educators. The Committee also notes the Government’s indication that no complaints had been brought before the Committee for Religious Affairs concerning infringements of labour rights on the basis of racial identity, religion or national extraction. The Committee requests the Government to continue to provide information on the measures taken to ensure equal treatment in employment and occupation of all persons irrespective of their racial or ethnic background and religion, including information on any cases of discrimination at work dealt with by the Committee for Religious and Ethnic Affairs, the courts and the labour inspection services. Finally, the Committee requests the Government to provide information on the labour market situation of persons belonging to national minorities and immigrants.

6. Article 3(d). Civil service. The Committee notes that section 24 of the Public Service Act, 2003, provides that no restrictions or advantages shall be allowed in respect of entry to or during public service based on sex, race, ethnicity, social background, property, religious affiliation, beliefs or membership in political parties or other public associations, except in cases specified by the Constitution of the Republic of Belarus. The Committee also notes that section 10 of the Act provides for an examination of information concerning candidates for the public service by the State Secretariat of the Security Council of the Republic of Belarus. The Committee requests the Government to indicate whether such examinations are being carried out in respect of all public service positions or whether they are limited to certain specific posts or functions and, if so, please indicate which posts or functions. The Committee also requests the Government to indicate the type of information that is being examined and the number of persons that have been excluded from public service employment as a result of an examination as envisaged under section 10. Please also provide information on any administrative or judicial decisions involving sections 10 and 24 of the Public Service Act.

7. Article 4. Measures affecting individuals suspected of activities prejudicial to state security. The Committee recalls that section 51 of the Criminal Code of the Republic of Belarus of 9 July 1999 provides that the right to hold certain positions or engage in certain activities may be forfeited by a decision of a court of law for a term of one to five years depending on the nature and gravity of the crime. The Committee noted previously that the court may pronounce such a forfeiture as additional punishment, provided that, based on the nature of the crime committed by a person by virtue of his or her position or a certain activity, the court deems it impossible to preserve the person’s right to hold a certain position or engage in a certain activity (section 51(2)). Noting that the Government has not yet replied to the Committee’s previous comments regarding this matter, the Committee once again requests the Government to provide detailed information on the application of section 51 of the Criminal Code by the courts, including information on the number and nature of cases in which it has been applied and the positions and activities involved.

8. Article 5. Special measures of protection. Working-time restrictions for women having children less than 3 years of age. The Committee recalls its previous comments concerning section 263 of the Labour Code which limits access of women having children under the age of 3 to certain types of work (overtime, work on public holidays, weekend work, business trips, and night work). It notes that legislative amendments have been prepared to permit women’s assignment to night work with the written consent of the women concerned, with a view to widening women’s opportunities in the labour market and to improving their competitiveness. The Committee requests the Government to continue to review, in consultation with the social partners, whether the remaining restrictions for women having children under the age of 3 are still necessary, taking into account the principle of gender equality and the need to promote a more equal sharing of family responsibilities between men and women. Please keep the Committee informed of any developments in this regard, including any legislative amendments.

9. Prohibition of recruitment of women for heavy manual work and work involving hazardous conditions. The Committee notes the list of heavy manual work and work involving hazardous occupational conditions in which the recruitment of women is prohibited, which was approved, in accordance with section 262 of the Labour Code, by the Council of Minster’s Decision No. 765 of 26 May 2000. The Committee notes that the list of work prohibited for women, as approved by Decision No. 765, is very extensive. It recalls that, following the resolution on equal opportunities and equal treatment for men and women in employment adopted by the International Labour Conference in 1985, special protection measures for women, which are based on stereotyped perceptions and their capacity and role in society, have been challenged, as they may give rise to violations of the principle of equality of opportunity and treatment. Such measures should be periodically reviewed to determine whether they are still necessary and appropriate in the light of technical developments and changing attitudes. The Committee requests the Government to indicate any measures taken or envisaged to review the list approved by Decision No. 765, in consultation with the social partners, and taking into account the principle of gender equality.

10. Part III of the report form. Labour inspection. The Committee notes the information provided by the Government concerning the mandate and tasks of the Department of State Labour Inspection. The Government also states that labour inspectors possess the necessary competence and knowledge to deal with equality and promote the application of the Convention. The Committee requests the Government to provide information on the specific activities carried out by labour inspectors to prevent, identify and resolve cases of discrimination.