FWC FPI/PSF/2015 Lot 4 RFS: 2016 / /1

Transcription

1

2 FWC FPI/PSF/2015 Lot 4 RFS: 2016 / /1 This Report was financed by the European Union. The views expressed herein are those of the contractor and do not represent the official views of either the European Union or the Korean Government. As it is a draft report, it may contain some errors and incorrect information. PROJECT WEBSITE AND FEEDBACK Feedback and comments on the Draft Final Research and Analysis Report and on the study in general can be sent to: inquiries@korea-euilo111.com Information regarding the project and access to project documents is available at: EUROPEAN COMMISSION Directorate-General for Trade European Commission Rue de la Loi 170 B-1049 Brussels 2

3 About DEVELOPMENT Solutions DEVELOPMENT Solutions (DS) is a European consultancy which serves the international donor and business community in support of sustainable development and sustainable investment objectives, world-wide. Our expertise is built on our strong grounding in project design and management, research, policy and regulatory analysis, and the management of capacity strengthening programmes for governments. Our primary projects are in support of EU external policies and cooperation in third countries, which includes deep experience in the area of trade policy, environment and sustainable solutions. This work has served as a valuable demonstration as to how trade and environmental policies can support developing countries to transition towards sustainable growth, which can bring economic efficiency and contribute to local and international efforts for sustainable development outcomes. 3

4 Contents Executive Summary Background and introduction The ILO and Human Rights in employment in the Member States of the European Union and the Republic of Korea Objectives of the Comparative Study on the Implementation of ILO Convention no. 111 in Korea and the EU Member States Project Overall methodology Research Steps Methodological framework of analysis proposed Conceptual Design of the Analysis and Methodology Practical results Stakeholder engagement Project Timeline International, European Union and Republic of Korea fundamental rights framework Setting the scene and perspectives The United Nations and International Labour Organisation The United Nations Human Rights System International Labour Organisation (ILO) The European Union and fundamental rights The Republic of Korea and fundamental rights EU Member States approach towards equality and non-discrimination in employment and occupation Legal Framework for equality and discrimination in employment and occupation International level European Union level National level Case study ITALY International and European level National level provisions and legislation Administrative level - Equality bodies Case study ROMANIA International and European level National level provisions and legislation Administrative level - Equality bodies The legal and administrative framework in Korea Constitution National Laws with Anti-Discrimination Provisions Framework Act on Employment Policy (enacted 1 July 1994) Labour Standards Act (enacted 13 March 1997, wholly amended 9 October 2009) Labour Union and Labour Relations Adjustment Act (enacted 13 March 1997) Framework Act on Gender Equality (enacted 30 December 1995, wholly amended 28 May 2014) National Human Rights Commission Act (enacted 24 May 2001) Act on the Protection of Dispatched Workers (enacted 20 February 2008)

5 Act on the Protection (etc.) of Fixed-Term and Part-Time Employees (enacted 21 December 2006) Act on Prohibition of Age Discrimination in Employment and the Promotion of Employment of the Elderly (enacted 31 December 1991) Act on the Promotion of Employment and Vocational Rehabilitation for Disabled Persons (enacted 13 January 1990, wholly amended 12 January 2000 and 25 May 2007) Equal Employment Opportunity and Work-Family Balance Assistance Act (enacted 4 December 1987, wholly amended 14 August 2001) Act on the Employment (etc.) of Foreign Workers (enacted 16 August 2003) Administrative structure and legal implementation The Labour Office System Labour Relations Commissions Implementation of ILO Convention no Attempts to enact the Anti-Discrimination Act Legal procedures for remedying discrimination International Labour Organisation Fundamental Convention no The ILO s ongoing role in advising on discrimination issues through the right of representation of interested parties ILO Fundamental Convention no Definition of discrimination Prohibited grounds of discrimination Race, colour, national extraction and social origin Sex Political Opinion and Religion Additional Grounds for Discrimination Multiple Discrimination Concepts of employment and occupation National policy on equality Monitoring, assessment and enforcement Case Study - Main Challenges identified by ILO in EU Member States and Republic of Korea in terms of compliance with Convention no Institutional governance ecosystem equality bodies, labour inspectorates, social partners, courts and tribunals Equality bodies Labour inspectorates Social partners and relevant stakeholders Courts and tribunals Case study AUSTRIA Equal Treatment Commission Ombuds system for Equal Treatment Case Study BELGIUM Interfederal Centre for Equal Opportunities (Unia) The Institute for the Equality of Women and Men Case Study CZECH REPUBLIC The Public Defender of Rights

6 7.8. Case Study SWEDEN The Equality Ombudsman Case Study THE REPUBLIC OF KOREA National Human Rights Commission of Korea Labour Inspectors Labour Relations Commissions Classic non-gender-related discrimination in EU Members States and Republic of Korea Overview Discrimination of foreigners in employment and occupations - Case of migrant workers Migrants workers in the EU Migrant Workers in the Republic of Korea Measures promoted by the Ministry of Employment and Labor Cases on Foreign Migrant Workers The Migrants Workers Union Age Discrimination Overview Age Discrimination in the EU Age discrimination in Republic of Korea, and legislative efforts and their limitations Challenges in Practice Disability-Based Discrimination Situation in the EU Disability discrimination in Republic of Korea Race, colour, national extraction and social origin grounds for discrimination Racial discrimination in the EU Race, Colour and National Extraction in Korea Political opinion as grounds for discrimination Political discrimination in the EU Situation in the Republic of Korea Religion as a cause of discrimination Religious discrimination in the EU Republic of Korea Case study Situation of Roma in EU Member States Policy implications The Challenge of Gender discrimination in EU Member States and the Republic of Korea The universality of the challenge Measures of Inequality Measuring inequality improvements over time EU Measures of gender equality General considerations about the indexes Gender equality and sex discrimination in the EU Member States Gender Equality and Sex discrimination in the Republic of Korea National Human Rights Commission Act Equal Employment Opportunity and Work-Family Balance Assistance Act

7 Maternity Protection Act Sexual Harassment in EU Member States and Republic of Korea Conclusions and Policy Implications Workplace issues and Non Standard Employment Basic Issues Irregular work in the EU Fixed term contracts Part time workers Temporary Agency Workers (TAW) Irregular Work in Korea Comparative Challenges and Issues in the EU and Republic of Korea Fixed contracts and permanent contracts Part Time Workers Temporary Agency Work (TAW) Policy Conclusions and Implications Good anti-discrimination policy steps towards identifying lessons learned General Prescriptions The value of interlocking ILO conventions Equality education in the work place Recognize, Re-evaluate and Reinforce the Ecosystem Speed of redress and ease of finding redress Non-Compliance in Small- and Medium-sized Enterprises (SMEs) Gatekeepers Who are the gatekeepers?

8 12. Examples of Good Practice The search for good practice The Gender Test (BELGIUM) Equality and Diversity Label System (FRANCE) The Equality Diversity Label (BELGIUM) Equality Mark Certification (MALTA) Depersonalised application procedure (GERMANY) Award provided to Employers that have friendly employees policies and respect gender equality and equal opportunities principles in their practices (SLOVAKIA) Diversity Training (DENMARK) European Institute for Gender Equality Good Practices Database Mutual Learning Programme in Gender Equality (European Commission) Labour Market Issues Good Practices Conclusions and policy implications Annex I - ILO Convention 111, Convention concerning Discrimination in Respect of Employment and Occupation (1958) Annex II Challenges identified by ILO in Direct Requests and Observations addressed to the 28 member states of the EU and the Republic of Korea ( ) Annex III - Evolution of Activity rates of women (15-64 years) in EU Members States Annex IV - Evolution of Employment Rates of women (15-64 years) Annex V - Gender pay gap in unadjusted form by NACE Rev. 2 activity - structure of earnings survey methodology in

9 List of abbreviations ANES National Agency for Equal Opportunities between Women and Men, Romania CAS Committee on the Application of Standards CEACR Committee of Experts on the Application of Conventions and Recommendations CJEU Court of Justice of the European Union CNCD The National Council for Combating Discrimination, Romania CSD Civil Society Dialogue CTSD Committee on Trade and Sustainable Development DAG Domestic Advisory Group DoD Department of Defence, United States DS DEVELOPMENT Solutions Europe Ltd. EC European Commission ECHR EU Convention for the Protection of Human Rights and Fundamental Freedoms ECSC European Coal and Steel Community ECtHR Council of Europe European Court of Human Rights EEC European Economic Community EU European Union EUD European Delegation EU-MIDIS European Union Minorities and Discrimination Survey FRA EU Agency for Fundamental Rights FTA Free Trade Agreement GDP Gross domestic product ICCPR UN International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ILO International Labour Organization LGBT Lesbian, Gay, Bisexual, and Transgender LRC Labour Relations Commissions LSA Labour Standards Act NAP National Action Plan, Korea NGO Non-governmental Organisation NHRCK OSCE ROK SOFA TEU TFEU UDHR Human Rights National Action Plan, Korea Organization for Security and Co-operation in Europe Republic of Korea Status of Forces Agreement Treaty on European Union Treaty on the Functioning of the European Union United Nations Universal Declaration of Human Rights 9

10 UNHRC UN UNAR The United Nations Human Rights Council United Nations National Office against Racial Discrimination, Italy 10

11 Foreword The project team would be the first to acknowledge that the subject for research was too vast to be fully captured in detail given the resources available to the project. The original intention of the project to compare merely the Republic of Korea and the EU quickly identified the need to penetrate to the country level. The 29 countries (28 EU Member States and the Republic of Korea) with their own legal systems and their own languages demanded attention which could not be fully satisfied. Given the timeframe and budget limitations adopting a thorough quantitative approach would have been inappropriate and it would have been difficult to build a statistically representative sample for the entire territory investigated. Hence we were heavily reliant on the comparative work by the ILO, OECD and other bodies, as well as our own interviews and legal analysis. Concerns were addressed by many parties about the question of balance. Issues of balance have been carefully considered, not least between the amount of attention given to individual EU Member States versus the Republic of Korea. Regarding some critical issues brought to the ILO, and where ILO observations are cited in the report, there are criticisms on one side that we do not give enough weight to them, and on the other side that we place too much emphasis on them and that these issues do not reflect fully the achievements of the Republic of Korea with respect to implementing Fundamental Convention No 111. If we are criticized on both sides we feel we are close to achieving a balanced view. We are deeply indebted to Katerine Landuyt and Karen Curtis of the ILO Norms division who facilitated our access to their database and to Taehohn Lee of the ILO, who guided us both physically and mentally through the world of the ILO activities. As is stated clearly on the title page, while taking into account the official views of representatives, the report represents the considered opinion of the consultants and not the official views of the EU, nor of any individual Member State, nor of the ILO, nor of the government of the Republic of Korea. - Dr. Tony Michell, Mr. Ioan Cristinel Raileanu and Mr. Chan Sik Ahn 11

12 Executive Summary This Research and Analysis Report forms one part of the Final Study of the project, along with the short Summary of Key Findings for Practitioners. A Comparative Study on the Implementation of International Labour Organisation (ILO) Convention no. 111 in the Republic of Korea and the European Union (EU) Member States project was launched in July The project is being funded by the EU under the EU Partnership Instrument. The project is being implemented by a consortium led by DEVELOPMENT Solutions Europe Ltd (DS). The objective of the project is to support the implementation of Chapter 13 of the Free Trade Agreement (FTA) between the Republic of Korea and the European Union (EU). In line with Chapter 13 and Annex 13 of the Korea-EU FTA, at the fourth meeting of the Committee on Trade and Sustainable Development (CTSD) in Seoul, 9 September 2015, Korea and the EU reaffirmed their commitment to cooperate on the implementation of ILO conventions and agreed to launch a cooperation project on the implementation of ILO Convention no The mutually defined goal of the project is to better understand the state of play of implementation in Korea and the EU Member States and to contribute to enhancing the implementation of the Convention in both Korea and the EU Member States. 1 ILO Fundamental Convention no. 111 is about human rights in the workplace. This Convention prescribes equality of opportunity in the run up to employment and throughout the working life of each individual. Since the discrimination agenda has evolved and expanded significantly in order to effectively respond to emerging challenges. Enhancing equal and fair treatment for several groups in employment and occupation remains a constant priority for signatory countries when developing laws and policies for the labour market. Although progress and positive outcomes have been noted in both Korea and the EU Member States, discrimination on various grounds still exists, including inequality between women and men. 1 European Commission. (2015). Joint Statement of the 4 th Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA. Seoul, Korea, 9 September Available: 2 The year when ILO Fundamental Convention no. 111 was adopted. 12

13 The research results are presented in this Final Study. The Final Study is based on a detailed comparative analysis of the implementation of Convention no. 111 in EU Member States and in the Republic of Korea. The Final Study reflects on the discussions and input provided by relevant stakeholders during interviews, meetings, questionnaires, civil society dialogues, written comments and a workshop, and provides a set of policy implications and suggestions to overcome identified shortfalls and enhance the implementation of the Convention in the Republic of Korea and the EU, placing specific emphasis on lessons learned and good practices in implementation. This report is divided into 13 chapters and six appendices Chapter 1 provides the background and context of the Study and Chapter 2 gives a description of the methodological approach. Chapter 3 provides an overview of international and national frameworks, along with efforts to ensure protection of fundamental rights and freedoms in the EU Member States and the Republic of Korea. Chapter 4 describes the equality and non-discrimination framework of the EU and its Member States in detail. Case studies of Italy and Romania are presented in this chapter, to illustrate the relationships between EU and Member State regulations relating to discrimination and to give examples of the frameworks that are in place at international / EU level, national level and administrative level. Chapter 5 presents the equivalent legal and administrative framework relating to discrimination in Korea. Chapter 6 discusses ILO Convention no. 111 in detail. As a case study, this chapter contains the main challenges identified relating to compliance with the convention in EU Member States and the Republic of Korea. Chapter 7 presents the institutional mechanisms of redress, both at national level and within the ILO system. Studies on the equality bodies of Austria, Belgium, the Czech Republic, Sweden and Korea are considered in more depth. Chapters 8 and 9 present the Study s findings regarding the discrimination in practice, focusing on gender issues (the subject of Chapter 9), migrant issues and others including age discrimination and discrimination based on race, religion and political opinion and the case of Roma minority in the EU Members States. 13

14 Chapter 10 additionally presents a preliminary comparative analysis of the cases of non-regular workers in Korea and the EU. Chapters 11 deals with both general issues and an overview of best practice principles. Chapter 12 includes examples of good practice identified in some EU Member States in promoting equality and combating discrimination. Chapter 13 presents the team s conclusions discussed in the final round of civil society dialogue (CSD) discussions in Seoul and Brussels and reviewed by the EC and the Government of the Republic of Korea. The report also contains five appendixes: the full text of ILO Convention no. 111; specific challenges identified by ILO Committees in the 28 EU Member States and the Republic of Korea; and three appendixes of detailed raw data relating to gender discrimination. A final appendix with data and analysis of questionnaire responses will be added in the Final Report. 14

15 1. Background and introduction The following chapter presents the context that led to the mandate of the Comparative Study on the Implementation of International Labour Organisation (ILO) Convention no. 111 in the Republic of Korea (ROK) and the European Union (EU) Member States project. The chapter will then go on to present the project s goals as well as the current status of the project The ILO and Human Rights in employment in the Member States of the European Union and the Republic of Korea In July 2011, the Free Trade Agreement (FTA) between the Republic of Korea and the EU entered into force. This agreement is the first FTA signed by the EU to include a fully developed Chapter on Trade and Sustainable Development (Chapter 13). Chapter 13 is devoted to tackling trade-related aspects of sustainable development, including labour issues, and cooperation on trade-related labour and environmental issues. 3 Article 13.4 Multilateral labour standards and agreements of the FTA recognises the value of international cooperation and agreements on labour issues and acknowledges the Parties obligations and commitment under membership of the ILO to respect, promote and realise the principles concerning fundamental rights, including the elimination of discrimination in respect of employment and occupation. Additionally, the Republic of Korea and the EU reaffirm their commitment to effectively implement the Conventions of the ILO that they have respectively ratified and to continue their efforts to ratify other fundamental and up-to-date ILO Conventions. Under Annex 13 Cooperation on trade and sustainable development of the FTA, an indicative list of areas of cooperation is established to support the objectives and obligations under Chapter 13. This list includes cooperation on labour issues in international fora such as the ILO, the promotion of ratification of fundamental and other ILO Conventions with an impact on trade, and trade-related aspects of the ILO Decent Work Agenda, including on gender equality. Regarding the institutional set-up, Article Institutional mechanism of the FTA establishes a Committee on Trade and Sustainable Development (CTSD) comprised of senior officials of the 3 The text of the FTA between Korea and the EU is available here: 15

16 Republic of Korea and the EU to oversee the implementation of Chapter 13 and the cooperation activities under Annex 13. The CTSD met for the first time on the 27 th of June 2012, and has met on an annual basis ever since. Further in accordance with Article 13.12, each Party has established a Domestic Advisory Group (DAG) comprised of independent representative organisations of civil society representing environmental concerns, labour, business organisations and other relevant stakeholders. The Republic of Korea and EU DAGs have met back-to-back with the CTSD during the annual Civil Society Forum since Their meetings have focused on conducting a dialogue encompassing sustainable development aspects of the trade relations between the Republic of Korea and the EU and to advise on the implementation of Chapter 13 of the FTA. 4 The state of ratification of the ILO Fundamental Conventions has been a topic in the Korea-EU dialogue on labour issues within the framework of the CTSD. At the time of writing, the Republic of Korea has ratified four of the eight ILO Fundamental Conventions (No. 100 on Equal Remuneration, No. 111 on Discrimination, No. 138 on Minimum Age and No. 182 on Worst Forms of Child Labour), while the EU Member States have ratified all eight ILO Fundamental Conventions. Another issue in the Korea-EU dialogue is the implementation of and compliance with ILO Fundamental Convention no. 111 of 1958 on the elimination of discrimination in respect of employment and occupation. While Convention no. 111 is ratified by both the Republic of Korea and the EU Member States, some concerns about compliance with the Convention have been raised both in Member States and the Republic of Korea. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has scrutinised Greece, Latvia, Slovakia, Spain and the United Kingdom in 2015 and the Czech Republic has been discussed as a country case at the 2010 and 2016 International Labour Conference. The Republic of Korea s compliance with Convention no. 111 has also been discussed as a country case at the International Labour Conference for three consecutive years, in 2013, 2014 and The Civil Society Forum conclusions and joint statements are available here: 16

17 1.2. Objectives of the Comparative Study on the Implementation of ILO Convention no. 111 in Korea and the EU Member States Project In line with Chapter 13 and Annex 13 of the Korea-EU FTA Korea and the EU agreed at the fourth CTSD meeting in Seoul on 9 September 2015 to launch a cooperation project under the EU Partnership Instrument on the implementation of ILO Convention no. 111 to better understand the state of play of implementation in the Republic of Korea and the EU Member States. 5 The general objective of the project is to support the implementation of the FTA and to contribute to the implementation of Chapter 13 and Annex 13 in the Republic of Korea and the EU. It should feed into and enhance the ex-post evaluation of the Korea-EU FTA. The project also aims to strengthen the cooperation between the Republic of Korea and the EU. More specifically, the objective of this project is to contribute to enhancing the implementation of the Convention in both the Republic of Korea and the EU Member States. The research for this study is intended to result in a detailed comparative analysis of the implementation of Convention no. 111 and provides a set of policy implications and suggestions to enhance compliance with the Convention. This should be represented by identification of best practice on difficult issues such as gender equality and migrants. The Study analyses the situation in both the Republic of Korea and the EU Member States regarding the implementation of Convention no. 111, and issues arising from these measures. The Project Team attempted to identify good practices developed to ensure equality and non-discrimination in employment and occupations as defined in the ILO Convention no.111 as this was indicated as an area of interest by various stakeholders. Combating discrimination at work is an important part of the advancement of human rights, and of special importance in the second decade of the twenty-first century when unemployment and migration are serious global political issues. The Project Team's approach to this topic was that there was much to be learnt from attempts by governments to advance measures that avoid discrimination both in hiring practices and workplace policies. Accordingly, there should be 5 European Commission. (2015), Joint Statement of the 4 th Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA. Seoul, Korea, 9 September Available: 17

18 discoverable transferable lessons to be gained through the analysis of both success and failures and the on-going challenges across nations. The aim has been to produce a balanced analysis which could become the foundation of future studies, and perhaps leading to future exchanges between the EU and the Republic of Korea, as well as future direction of policy on a more immediate basis. Our starting point is historical and comparative, to observe the evolution of workplace human rights across time and cultures. Our comparison is intended to reflect differences within the 28 EU Member States, as well as between the EU and the Republic of Korea, since despite successive rounds of harmonization there are significant differences in culture and in national law with respect to aspects of workplace human rights. Comparative studies cannot be conducted without an analytical approach. From this analytical point of view, the analysis must consider the distinct structure of levels of policy advocacy, from supranational law, national law, regulators and administrative enforcement and/or incentives to comply, down to the complex appeal mechanism, supranational and national in the case of the EU and national in the Republic of Korea. The Study will also look in depth at those areas where, from the point of view of those discriminated against, the existing framework is inadequate and requires improvements. 18

19 2. Overall methodology From a methodological point of view, the Study focused mainly on analytical and qualitative research methods. The Project Team began with an in-depth literature review based on the existing body of literature regarding the Republic of Korea, the EU and international practices. It moved to an in-depth analysis of relevant documents and materials (Korean laws, EU Directives and Member States legislation and ILO records) and makes use of both primary, empirical data and of secondary data. Primary data includes court cases presenting the needs of the discriminated against. The approach taken was that cases brought to the ILO would be the tip of the iceberg and that therefore a fundamental review of the whole field of discrimination in the workplace was essential before adding the most contentious issues. The Study also required an up-to-date view of workplace rights as defined by Fundamental Convention no Though this Convention was framed in 1958, it has been re-interpreted in line with the whole question of the evolving workplace, the evolving society in which the workplace sits and the evolution of the economy it reflects. The ILO itself has moved towards Decent Work while most societies have moved to focus on the problem of Youth Unemployment, perhaps ignoring other issues such as age discrimination, ongoing gender issues and the question of whether the self-employed are locked out of certain benefits of the welfare system. In talking to the stakeholders, an emphasis on their perception of workplace rights in and where they hope to get to by 2020 was considered important. For the scope of this study we identify gender issues as core discrimination, given the issues high profile and the ongoing efforts put in place internationally in achieving equality between women and men and combating gender differences in payment and in other aspect of the labour market. We use classic discrimination to identify the remaining six (race, colour, religion, political opinion, national extraction or social origin) grounds explicitly included in Convention no.111 and all other evolving grounds of discrimination generally recognised in society (age, disability, etc.). The difference is that gender issues are imbedded in society whereas the other issues occur in different ways from place to place. 6 6 This division was influenced by consideration of Gary Becker, The Economics of Discrimination,

20 The first phase of the Study contained in the Interim Report established broad sets of data for the completion of a comparative matrix, designed to compare the status of effective legal and administrative provisions adopted for the implementation of ILO Convention no. 111, both in the Republic of Korea and across EU Member States. The legal analysis has also identified key challenging areas in each region, and begun highlighting for further examination particular policies / projects considered to be good practice. Where areas were of common concern, or one partner has had success in dealing with the issue, these were further investigated to see whether there are examples which can be followed. In addition, the Study has made use of analyses, comments and recommendations from the ILO monitoring bodies and relevant stakeholders in order to ensure a broad coverage of views and opinions and to allow a full understanding of forces pulling in different directions. The analysis of the legislative and policy framework conducted in the first phase of the research helped identify and highlight particular good practices in fighting discrimination in employment and occupation at later stages in both the Republic of Korea and the EU Member States, along with challenges that would be addressed in the policy implications. The second phase of the research focused on a deeper analysis of the identified priority issues, with a view to provide input to enhance policy effectiveness in both the Republic of Korea and EU through the Final Study. This input particularly relates to sensitive issues such as migrant workers and refugees, as well as nationality, minorities and gender. Interviews of selected experts and stakeholders from Korea and the EU Member States were conducted when the Project Team had a firm grasp of the issues as they exist in The interviewees were chosen from the following categories: specialised lawyers, governmental officials, social partners, equality bodies, representatives of the groups of people concerned by the implementation of ILO Convention no. 111, ILO experts, and other relevant stakeholders. The core methodological framework is based on a comparative and qualitative approach, with the proposal of grounded situation analysis theory applied to stakeholders at an appropriate stage as explained below. Given the timeframe and budget limitations adopting a thorough quantitative approach would have been inappropriate and would have presented difficulties in building a statistically representative sample for the entire territory investigated. 20

21 2.1. Research Steps Step 1: Conduct a literature review on ILO Convention No. 111 specificities and implications on ratifying states and related literature on anti-discrimination policies. Step 2: Review and collect the relevant legislative framework and policies of the various countries under consideration. Step 3: Review ILO comments and observations on each country with respect to implementation of policies on equal treatment and anti-discrimination and challenges identified and addressed by Committee of Experts on the Application of Conventions and Recommendations (CEACR) and Committee on the Application of Standards (CAS). 7 Step 4: Original research: Interview stakeholders individually, using research partners to reach a wider number of stakeholders, to clarify and provide insight into their perspectives on discrimination and on particular challenges relevant for the territory represented. Step 5: Analyse, classify and produce theses which can lead to policy debate and better policy using grounded situational analysis and associated diagrams: Comparative analysis common challenges vs. unique challenges; Statistical analysis of data collected through other surveys e.g. OECD, EU compare and contrast for insights; Stakeholder interviews. Other methods, including assessing the seriousness of an issue in terms of the definition of discrimination given in Convention no. 111: the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Step 6: Undertake a grounded situational analysis of stakeholder interview notes, guided by Alvesson s and Clarke and other s theory and practical examples with respect to new insights into policy applications. 8 7 Undertaken during a visit by the Project Team to Geneva on the 19 th 21 st of December 2016, as some documents can only be consulted in situ at the ILO. 8 Time constraints prevented a round of consultation with stakeholders on how they react to the situational maps which could be drawn and test whether doing this brings new joint insights into policy applications. The information in Annex 6 allows this to be conducted in later studies. 21

22 Step 7: Debate issues regarding best practice and solutions Step 8: Finalise the Study 2.2. Methodological framework of analysis proposed The methodology can be summarized as follows in this diagram, with details of the situational analysis given in the following section. Figure 2.1 Project Flow Empirical research approach Step 1 Conduct a literature review on ILO Convention No. 111 specificities and implications on ratifying states and related literature on anti-discrimination policies. Step 2 Review and collect the relevant legislative framework and policies of the various countries. Step 3 Review ILO commentary on each country with respect to implementation of policies on equal treatment and anti-discrimination and challenges identified and addressed by Committee of Experts on the Application of Conventions and Recommendations (CEACR) and Committee on the Application of Standards (CAS). Situational analysis approach Step 4 Original research - Interview stakeholders individually to clarify and provide insight into their perspectives on discrimination and on particular challenges relevant for the territory represented. Step 5 Analyse, classify and produce theses which lead to policy debate and better policy using grounded situational analysis. Step 6 Undertake a situational analysis of stakeholder interview notes, guided by Alvesson s and Clarke and other s theory. Step 7 Consult with stakeholders on how they react to the situational maps and test whether doing this brings new joint insights into policy applications. Opinions - perceptions of stakeholders using situational analysis tools. Conclusions and future approaches Step 8 Debate issues regarding best practice and solutions. Step 9 Finalise Research and Analysis report with Summery of Key Findings for Practitioners. 22

23 2.3. Conceptual Design of the Analysis and Methodology Until Step 4, the study followed standard empirical research methodology, reading, reviewing and collecting material relevant to discrimination, laws and reports of the various nations and international bodies and identifying stakeholders and channels of redress (national or supranational assemblies, administration, courts, equality bodies, NGOs and trades unions or other organizations.) Following Step 4, the procedural methodology of situational analysis was used, as evolved by Alvesson (1996 onwards), Clark et al (2006 onwards). Grounded situational analysis suggests that stakeholders judgements about the achievements of anti-discrimination accomplishments should be prioritised over a simple examination of whatever the government or other agent does institutionally. This allows countries without certain discrimination issues to be compared with those that do, to see what lessons can be learnt that are not immediately apparent from a casual comparative approach. Grounded situational analysis was developed by Strauss and Glaser in the 1960s and 1970s as a way to allow social theories and policy practices to be studied qualitatively at a time when quantitative methods were overwhelming sociology and political science. 9 Clarke s consideration of practical consequences has broadened the method s relevance to a wide area of practice-oriented research projects which engage in qualitative research. 10 This approach seems particularly well suited to discrimination practices and policies, in which leadership in anti-discrimination practices is presumably shared amongst stakeholders and not solely in the hands of a single legislator or judge. 11 The project team explored how different nations enable stakeholder anti-discrimination leadership in the field of employment and occupations in their respective jurisdictions. The analysis will focus 9 Glaser Barney G and Anselm L. Strauss The Discovery of Grounded Theory: Strategies for Qualitative Research, Chicago 1967; Strauss Anselm, L, Qualitative Analysis for Social Scientists, 1987, Strauss Anselm L and Juliet Corbin 1998 The Basics of Qualitative Analysis: Grounded Theory Procedures and Techniques, 2 nd edition; Adele E. Clarke Situational Analysis: Grounded Theory Mapping after the Postmodern Turn, Symbolic Interaction Volume 26 Number , pp Updated studies in Clarke s website: clarkessituationalanalysis.blogspot.com 10 Tom Mathar, Making a Mess with Situational Analysis?, Review article of Clarke s book FQS Journal Vol. 9 art 2, See Appendix VI Results and Analysis of the Questionnaire 23

24 on how stakeholders influence the direction of the social entity or nation, as well as the relationships and identities of individual stakeholders and how their interaction is enabled and constrained by social and cultural influences (e.g. organisational culture, national/ethnic culture, and gender) as shown in the workplace. The Study gives insights into the workings of anti-discrimination policies and initiatives, suggesting supplementary approaches. 12 The project team was guided by the interpretive perspective provided by the two DAGs and other respondents, using developments in situational analysis as revived since The interpretive perspective places the focus on interpreting the meanings and perspectives of cultural members or stakeholders, and how these meanings are negotiated. It is important to note that the stakeholders are not usually those discriminated against, and that while some organizations including trades unions and non-governmental organisations (NGOs) claim to speak for the discriminated against, there will be others who are discriminated against who have no voice. A good example is the recent publicity move in France by senior female figures in the French administration saying it was time to speak out against sexual harassment, a practice which most certainly creates in the mind of any female worker an effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. 13 In terms of situational analysis methodology, we have a problem of the voiceless non-stakeholder, who is the intended beneficiary of anti-discrimination policies. How then on a comparative basis do we quantify the impact of measures taken? Within the limitations of the study in terms of the number of countries studied, and the time available, we have to limit ourselves to the assumption that all types of discrimination in the 12 Discrimination Studies as a discipline is dominated by the US whose preconceptions are far from those of ILO Convention No 111. See for example the description of discrimination studies in SSRC 2010 Discrimination Studies Fellowships: Time constraints limited the tests of the usefulness of a perspective (the comparative and qualitative situational approach) that is underdeveloped in the discrimination literature, but the report permits others to pick up and develop these concepts and methodology. 13 NPR, Silent No More: French Women Speak Out Against Pattern of Sexism, May 16,

25 workplace are understood (and there are no new types to be discovered.) 14 The situational approach directs the Project Team to choose one or a few specific interactions to explore in depth. These interactions will be suggested by members of the two DAGs. Thus, an appropriate means of investigating the topic from this perspective is interviewing the stakeholders to understand the meanings they have for their interactions Practical results In particular, the practical and theoretical issues which may arise between the authorities responsible for the administration of the labour market and employment policy, and governmental or non-governmental human rights organisations have been examined. This examination has been conducted both from an empirical point of view and from examination of court records relating to appeals to the Council of Europe European Court of Human Rights (ECtHR) and to the Court of Justice of the European Union (CJEU), and in the case of Korea to the secular courts and the National Human Rights Commission of Korea (NHRCK). Further inspection of documents at the ILO Headquarters in Geneva provided insight into the broader issues, as well as specific data about individual countries of interest, as the debates reflected in the reports to the ILO and within the ILO community affect all the countries studied. The practical results of this analysis have facilitated a cross-national analysis of stakeholders positions on common workplace issues covered by ILO Convention no Discussion during the project workshop allowed participants to understand how good policies and practices reduce discrimination, and the project s Final Seminar, where the Final Study will be presented, should continue this sharing of best practices. Lessons from the research and analysis involved in this Final Study are given in the later chapters, forming a set of policy implications to the Korean government and to the EU and its Member States to enhance compliance with ILO Convention These policy implications are based on thorough analysis of the legislative and policy administration framework both in the Republic of Korea and the EU Member States. The consultants hope to build an agenda for future agreement, along with avenues for future research. 14 Recent Australian Government Guidelines 2010 add several additional items, notably career status 15 This was one of the originally stated aims of the project. 25

26 2.5. Stakeholder engagement Input from stakeholders was instrumental in shaping the direction of the Final Study. Because of the slowness of feedback from some bodies, a postscript may be added to this document arising from new stakeholder intervention and issues raised in the seminar. Of the four CSDs planned at the outset of the project, the first took place in Brussels in July The second CSD was delayed until October due to the reappointment of the DAG in Korea, and ultimately cancelled, however a series of smaller stakeholder meetings took its place, to receive input from members of the Korean DAG. The third took place in Brussels on 6 th February 2017, and represented one of the last major stakeholder contributions to the study. The fourth, planned to take place in Seoul like the second, has also been cancelled and has been replaced with a series of smaller stakeholder meetings. Korean stakeholders have also been given an opportunity to provide input during a Workshop held in November 2016 in Seoul. The Workshop was attended by more than 20 relevant stakeholders from academia, trade unions and NGOs including members of the EU and Korean DAGs. They were joined by representatives from the European Commission and Delegation of the EU to the Republic of Korea. The meeting served to engage interested stakeholders and promote dialogue, allowing them to contribute their knowledge and expertise to the project s Interim Report (which effectively formed an early draft of this Final Study). Following the finalisation of this Study on the basis of stakeholder input, a full-day closing Seminar will be held in Brussels to present and discuss the findings and policy implications of the Final Study, to enhance compliance with ILO Convention no This Seminar brings together 50 to 60 governmental and non-governmental stakeholders, including members of the Korean and EU DAGs and experts from NGOs, academia and international organisations, including the ILO. This will include many of the participants from the workshop in Seoul. To facilitate discussion, English - Korean simultaneous interpretation will be provided. Key experts will present the final findings of the project and the Final Study. They will present and discuss the key policy implications to Korea, the EU and the EU Member States and further actions to be taken to enhance compliance with ILO Convention no Seminar participants will then be invited to comment on the Final Study and to ask questions. 26

27 Phase 3 Stakeholder Consultation Quality Management Phase 2 Phase Project Timeline The project was organised into three phases: the first focusing on project preparation and planning, the second on implementation of stakeholder outreach, modelling, and case studies, and the third phase on the Final Study. This is illustrated in the flow diagram below. Figure 2.2 Project Flow Diagram Project Kick-Off initial briefing Civil Society Meeting 1 Brussels Inputs Launch of website and outreach activities Inputs INCEPTION REPORT Inputs Civil Society Meeting Seoul Research content development; literature and document review; methodology refinement and data collection and analysis, early interviews; consolidation of inputs from outreach activities Workshop Seoul Inputs INTERIM REPORT Inputs Civil Society Meeting 2 Brussels Revisions of methodologies, focus on key issues Revised analysis Ongoing consultations on and offline and incorporation of results Inputs DRAFT FINAL STUDY Incorporation of feedback Conclusion of outreach activities Civil Society Meeting 2 Seoul - TBC FINAL STUDY Seminar Brussels 27

28 3. International, European Union and Republic of Korea fundamental rights framework 3.1. Setting the scene and perspectives This chapter includes a short overview of the International, EU and Korean frameworks designed to ensure protection of fundamental rights and freedoms. It briefly presents some of the features of the EU Agency for Fundamental Rights (FRA) which helps in guaranteeing that the fundamental rights of people living in the EU are protected, and the corresponding bodies of Republic of Korea, the Korean Human Rights Commission and the Constitutional Court. From an analytical point of view, this Study must consider the different levels of policy advocacy, from supranational law, national law, regulators and administrative enforcement and/or incentives to comply, down to the complex appeal mechanism, supranational and national in the case of the EU and national in Republic of Korea. This is illustrated in the following diagram which shows the complexity of the European situation. Figure 3.1 EU different levels of policy advocacy International Level United Nations and International Labour Organisation Conventions European Convention on Human Rights and European Court of Human Rights Treaties, Charters and Directives European Level Council of the European Union, European Commission, Court of Justice of the EU Constitutional and Legislative Frameworks National Level National Courts Infrastructure for the Administration of Rules, Inspection and Complaint Handling Proceedures 28

29 In the Korean case, the situation is much simpler, with fewer international connections and fuller emphasis on the national level. 16 Figure 3.2 Republic of Korea, levels of policy advocacy International Level United Nations and International Labour Organisation Conventions National Level Constitutional and Legislative Frameworks Constitutional Court National Courts Equality Bodies Infrastructure for the Administration of Rules, Inspection and Complaint Handling Proceedures The equality and non-discrimination agenda has evolved considerably since 1958, and the changes experienced have shaped the legislative framework and the measures implemented by various countries and by the EU Members States and the Republic of Korea. Still, worldwide many people do not enjoy fully their rights and suffer from direct and indirect discrimination, especially in employment and occupation. Discrimination inhibits economic development and growth, and increases inequalities. 17 Therefore, enhancing equality and combating discrimination should remain a priority for all stakeholders and for actions and cooperation processes which can unfold internationally. Although at conceptual level there is an agreement about equality and discrimination in employment and occupation, in practice the pathways used by EU Member States and by the Republic of Korea to promote equality and to combat discrimination are diverse, and sometimes 16 In practice Korean courts tend to overlook the obligations implicit in UN and ILO conventions and to fall back on the Korean constitution. Korean lawyers have not argued that these obligations have the force of law except in one case where it was successfully argued. This leads to tension when either the UN or ILO voice criticism on particular issues. Questions of balance have been raised to the present reports treatment of three issues which we indicate at the appropriate place. 17 A new study on the impact of gender discrimination in the EU suggests that there is a loss of 3% of GDP as a result. Eurofond, The gender employment gap: challenges and solutions, Oct

30 sporadic and not sustained. Therefore, gaining a broader understanding about the situations, challenges and approaches taken should ensure better compliance with the provision of ILO Convention no Challenges in areas like gender pay gap, age discrimination, migrant workers, minorities and other groups remain of particular interest for policy makers in both EU Member States and in the Republic of Korea. To this end, the efforts to develop legal provisions and measures that would enhance equality and eliminate discrimination in employment and occupation should be continued. The current and future cooperation platforms between the Republic of Korea and the EU that aim at magnifying knowledge exchange and mutual learning should also continue to work towards increasing the relevance and effectiveness of efforts to overcome common challenges. Those faced in terms of equality and discrimination are of particular relevance. In recent decades, reaching agreements on protecting human rights, ensuring equality and combating all forms of discrimination has represented an increasing concern of international institutions and stakeholders at the international and national level. The labour market is a specific area of interest. Enhancing equality of opportunity and treatment in employment and occupation became a priority for international institutions and these translated into different instruments adopted at a national level. In line with the shift at international level in the EU the ideal of removing discrimination, especially between women and men and specifically the ones in payment has also been incorporated into negotiated treaties. Nevertheless, inequality between women and men and discrimination on grounds such as race, religion, political opinion, national extraction and social origin still exists in some workplaces in many countries, and a search for solutions must go beyond laws and treaties into education and social practices The United Nations and International Labour Organisation Sections and examine international legislation and institutions which support the goal of removing discrimination specifically in the context of the UN and the ILO. 30

31 The United Nations Human Rights System After the horrendous events of the Second World War the international community engaged in a process of establishing a general acknowledged framework that would help avoid the faults of the past and guarantee a set of universal rights for all human beings. The Universal Declaration of Human Rights 18 (UDHR) of 1948 represents the product of those efforts, the foundation and inspiration for future international human rights provisions. To this end, equality and non-discrimination are core principles of the Universal Declaration of Human Rights: Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Based on the fundamental human rights recognised in the UDHR and given the negative consequences of discrimination in education, employment and labour market the International Labour Organization at the International Labour Conference on 25 June 1958 adopted the Convention Concerning Discrimination in Respect of Employment and Occupation no that 18 The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December The text of Declaration is available at: 19 The Convention was adopted in Geneva on 25 June 1958 at the 42 nd International Labor Conference. The text of the convention is available at: 31

32 entered into force on 15 June Convention no. 111 admits that discrimination is a violation of the Universal Declaration of Human Rights in the world of work. Convention no. 111 has been ratified by countries to date, with the United States the most prominent absence. The first EU Member State that ratified Convention no. 111 was Portugal on 19 November 1959 and the latest was Estonia on 17 August It should be noted that the UN and ILO framework recognise national states as members, and that the EU has observer status at the UN, like the Red Cross and Arab League. From 2011 it has had enhanced observer status allowing it to speak before member nations, and to coordinate voting and policy statements. But unlike member states, it has no vote. The human rights agenda has evolved considerably since the Second World War. The need to protect citizens against the actions and abuses of their own governments became an important theme and this was translated in the adoption of the UDHR which sets standards to protect individuals against human rights abuses and guarantees certain fundamental freedoms. 21 Since the UN Declaration of Human Rights is not legally binding for states, other treaties were adopted to ensure UDHR is supported by legally binding documents. This includes the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1969, the UN International Covenant on Civil and Political Rights (ICCPR), 1976, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1976, and finally the creation of the United Nations Human Rights Council (UNHRC) in Recognising the continuous evolution of the human rights agenda, the UN tasks concentrate on developing international human rights and on monitoring and protecting existing rights. In order to check the compliance with the provision of specific legally binding documents at national level, each ILO Convention has an associated committee that monitors the way human rights are enforced nationally. This process of monitoring is based on national reports submitted regularly and on inputs from relevant stakeholders about the situation in specific countries. The committees adopt recommendations that states need to comply with. ANG_CODE:312256,en 20 Full list of 173 countries which have ratified Convention 111 can be found here: 21 The full text of the UDHR is here: 32

33 The United Nations Human Rights Council established in 2006 is responsible for: investigating violations of human rights identified or brought to its attention; reinforcing the promotion and protection of human rights and fundamental freedoms; and developing education and learning activities about human rights and ways to protect them. It also works at enhancing each states capacity by supporting the strengthening and development of their legal systems. The UNHRC plays an important role in recommending ways of improving international law in terms of human rights and to enforce full implementation of human rights obligations taken by different countries International Labour Organisation (ILO) In the world of work, the ILO has comprehensive oversight in setting standards and promoting efforts to eliminate discrimination in respect of employment and occupation. In 1944, elimination of discrimination was included in the Declaration of Philadelphia concerning the aims and purposes of the ILO, document annexed to the Constitution of the organisation. Further steps were taken in 1951 and 1958 with the adoption of the main Conventions that aim at enhancing efforts in eliminating discrimination in employment and occupation, namely the Equal Remuneration Convention No. 100 and the Discrimination (Employment Occupation) Convention No. 111 and the recommendations associated with them. The two Conventions are included among the eight fundamental Conventions that all member states should ratify. The ILO s Fundamental Convention no. 111 was first framed in 1958 to govern handling discrimination in the work place. The opening articles set the framework of the convention: Article 1 1. For the purpose of this Convention the term discrimination includes- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as 22 The most recent UN inspection of Korea focusing on freedom of expression and freedom of association reported in

34 may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 3. For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Article 2 Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. Article 3 Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice-- (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy; (b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy; (c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy; (d) to pursue the policy in respect of employment under the direct control of a national authority; (e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority; (f) to indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action. The full text of the convention is attached in Annex I. In 1958 the world was subject to a very different social order from today, and many forms of discrimination went unnoticed in many countries. As the evolution of awareness of human rights continues to the present day, new issues arise. Sometimes the terms of the convention far predate 34

35 new situations. Notably this is true of migrant labour which hardly existed in its present form in The recognition of discrimination by the discriminators is not always a simple path, and national governance has not always responded to these issues proactively, as opposed to reactively. This fact has partially determined the research methodology, which requires not merely a study of legislation and administrative action a top down approach, but also a study of common segments of discrimination across countries, such as gender inequality, and the treatment of migrants in the workplace, which is closer to a bottom up approach. Each nation signing a convention also has the obligation to report annually on progress and issues in implementation which is discussed in detail in chapter The European Union and fundamental rights Equality and non-discrimination along with freedom, democracy, human dignity, the rule of law and respect for human rights represent core values of the European Union reflected in the treaties, directives and other public documents agreed by the Member States at EU level. An additional step in strengthening the protection of human right in the EU Member States was taken in 2000 when the Charter of Fundamental Rights of the European Union was adopted. This document became binding for all EU Member States in The Charter of Fundamental Rights of EU enounces the fundamental rights that are binding for the EU institutions and bodies. It only applies on a national level when Member States implement the EU law. The Charter protects individuals and legal entities against the actions of EU institutions that could violate their fundamental rights. In order to ensure protection in such cases, persons or legal entities can file complaints to the Court of Justice of the European Union (CJEU) which has the power to review the EU institution act or action. If national authorities fail to respect the Charter when implementing the EU law then national courts have the power to enforce it. The Charter of Fundamental Rights of the EU is in line with the earlier Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) that was developed by the Council of Europe in 1950 and which was signed by all Member States of the EU. 35

36 The rights, freedoms and principles of the EU citizens protected through the Charter are included in six titles dignity, freedoms, equality, solidarity, citizens rights and justice. Under the equality title, the articles in line with the scope with ILO Convention no. 111 are the following: Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. Article 23 Equality between women and men Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Other parts of the Charter of Fundamental Rights of the European Union that are also in line with the scope of the Convention no. 111 include: Article 14 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. [ ] Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.[ ] The rights, freedoms and principles included in the Charter only cover the actions of national authorities in the scope of implementing the EU law. The rights of individuals or legal entities are protected outside the scope of the Charter by the national constitutions and any transgression not 36

37 covered by EU law would be dealt with by the national authorities (governments, courts or specialised human rights bodies). In order to enhance the monitoring process of the Charter of Fundamental Rights of the EU the European Commission publishes an Annual Report. This report reflects the progress achieved in different areas and how the Charter contributed and was envisaged in actual situations. Another important pillar of the fundamental rights protection system in the EU is represented by the European Union Agency for Fundamental Rights (FRA). This is a decentralised agency of the EU that was established in 2007 to help and to assist the EU institutions and the Member States in understanding the challenges faced in terms of protecting the fundamental rights of people living in the EU and at the same time for ensuring that these rights are protected. The FRA s main task is to provide independent, evidence-based advice on fundamental rights. Other tasks accomplished by the FRA include collecting and analysing information and data; providing assistance and expertise; communicating and raising rights awareness. Some of the activities performed by the FRA in line with its purpose and mandate are specified as follows: conducts research activities at EU level and present standardised information across all EU Member States on topics of interest; provides independent advice on compliance with fundamental rights and freedoms in the process of developing new legislation and policies at EU level; develops an annual report that maps the main challenges and achievements across the EU; enhances cooperation between various stakeholders with the role of improving fundamental rights protection in the EU; organises conferences and meetings with the role of increasing awareness on fundamental rights issues and challenges at national and European level; issues opinions and conclusions to EU institutions and Member States on how to ensure that fundamental rights are respected when developing and implementing legislation and policies; cooperates with civil society organisations to facilitate knowledge exchange on challenges faced; and provides trainings and practical information to lawyers and other relevant groups with the role of ensuring fundamental rights are protected throughout the EU. One of the relevant initiatives of the FRA linked with the provisions of Convention no. 111 is the European Union Minorities and Discrimination Survey (EU-MIDIS) which covered immigrant and 37

38 ethnic minority groups from 27 EU Member States. The results of this survey helped in identifying the level of discrimination perceived by immigrants and ethnic minorities and the proportion of victims from these groups that experienced discrimination or a racially-motivated crime. Since 2007, the work of the FRA is reflected in the documents adopted on issues related to fundamental human rights by the institutions and bodies of the EU, the Council of Europe, the UN, the Organization for Security and Cooperation in Europe and other international organisations. Although the legislative and policy evolutions at EU level and its Members States are going in the right direction and the fundamental rights of individuals are acknowledged and protected, still several groups in society continue to experience manifestations of intolerance and discrimination The Republic of Korea and fundamental rights The Republic of Korea s constitution largely dates from its original 1948 incarnation. It was drafted by Dr. Chin-O Yu, and provided for central control under the President, but not originally for direct Presidential elections. It has been partially amended nine times and wholly amended four times (constitutions of 1962, 1972, 1980, 1987). Reflecting the influence of post-war thinking in the 1940s, sections include all the rights normally found in the US and European constitutions, including the basic human rights of equal opportunity, equality and individual freedom, plus a guarantee of due legal process. The Constitution of the Republic of Korea is the law which applies at the highest level. The Constitution takes precedence over any other national laws, and the international treaties Republic of Korea has signed, such as the ILO conventions, have the same effect as national law. The articles of the Constitution in line with the scope of Convention no. 111 are as follows: Article 10 All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals. Article 11 (1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status. 38

39 (2) No privileged caste shall be recognized or ever established in any form. All citizens shall enjoy freedom of work. Article 15 Article 32 (3) Standards of working conditions shall be determined by the Act in such a way as to guarantee human dignity. (4) Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages and working conditions. (5) Special protection shall be accorded to working children. (6) The opportunity to work shall be accorded preferentially, under the conditions as prescribed by the Act, to those who have given distinguished service to the State, wounded veterans and policemen, and members of the bereaved families of military servicemen and policemen killed in action. Article 34 (1) All citizens shall be entitled to a life worthy of human beings. Article 35 (1) All citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavour to protect the environment. Article 36 (1) Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal. Like eighteen of the EU Member States, the Republic of Korea has a constitutional court. This court hears cases about both laws and practices which can be ruled as unconstitutional and after such a ruling, the National Assembly must enact laws which comply. The 1987 constitution rewrote the rules for the Constitutional Court. The current Constitutional Court dates back to the 9 th Amendment of the Constitution of the Republic of Korea in 1987, and was established in 1988 under Chapter VI of the Constitution. Although there had been bodies for constitutional review prior to the current Constitutional Court, none of them were very active, however all courts including district courts could hear constitutional issues so actual cases are hard to track. In contrast, the current Constitutional Court rendered 13 rulings in 1988, which was the first year of 39

40 its commencement, and 307 rulings in As of January 31, 2017, the Constitutional Court has already examined 30,814 cases, with 30,043 cases being resolved and 771 cases pending. This drastic change is largely owed to the people's movement for democracy in 1987, which gave birth to the current Constitutional Court and allowed a new system for judicial review in Korea. The constitution itself has not been modified since 1987, and in most of its general human rights/citizen rights clauses has been unchanged since the early constitutions. Since 2001, the country has had a national commission for human rights, the NHRCK, which may investigate any issue raised by a resident of Republic of Korea. However, most discussion about workplace rights takes place between the organised labour movement of the Republic of Korea on a day to day basis with the relevant government ministry and the National Assembly, or the Tripartite Commission for Economic and Social Development as appropriate.. Korea has a Tripartite Commission of government, labour and employers as required by the ILO, created by the Act on the Tripartite Commission for Economic and Social Development of May This commission is intended to prescribe: necessary matters concerning the organisation and operation thereof in order to conduct consultation between workers, employers and the government on labour policies and related economic and social policies, etc. based on mutual trust and cooperation, and to provide advice to the President upon request. It includes in its remit: Labour policies concerning workers employment security and working conditions, etc. and matters concerning industrial, economic and social policies which have a serious effect thereon. Article 3 Revisions to the Act in 2007 attempted to broaden the scope of the Commission. The composition of the labour section of the Korean DAG reflects this commission s membership. The initiatives of the Commission are largely prescribed by the focus of the government of the day. 40

41 4. EU Member States approach towards equality and non-discrimination in employment and occupation This chapter describes the equality and non-discrimination framework of the EU and its Member States in detail. The two case studies (Italy and Romania) included at the end of the chapter were designed to provide a better understanding of the situation at national level and the evolution of the framework Legal Framework for equality and discrimination in employment and occupation In the EU Member States the principle of equality and the prohibition of discrimination on various grounds are included in the most important piece of legislation, namely the constitution. 23 In order to supplement the constitutional provisions, to better describe and further develop the equality and non-discrimination framework, EU Member States adopted specific laws that are in line with international provisions and with the binding EU legislation. As graphically presented in Figure 3.1 the EU Member States face multiple legal sources when embarking on the process of developing or updating their legal framework on equality and discrimination in employment and occupation. In this perspective, the national legislation of EU Member States is highly influenced by both the relevant international framework and by the EU legislation. The EU legislative framework builds upon the international provisions and tries to set common standards for all Member States. 23 Exceptions are Denmark and the United Kingdom which have no constitutional provisions. In the case of the UK the constitution is unwritten, and therefore contains no articles dealing with discrimination. 41

42 International level Besides the evolving UN and ILO framework of human rights, described in chapter 3, which are incorporated into EU practice as they occur, another significant pillar at the International level, especially relevant for the EU Member States is the Council of Europe. 24 This institution that was established in 1949 has a wider membership than the steadily expanding EU. It was established by the founding fathers of the European Coal and Steel Community (ECSC in 1950) and the European Economic Community (EEC in 1957) 25 that would later evolve into the European Union as we know it today. The Council of Europe, currently with 47 members (including Russia), created the European Court of Human Rights (ECtHR) in 1959 as a recommendation of the European Human Rights Declaration of The European Court of Human Rights continues to evolve, especially through Protocol 14 which came into force in Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states that the Court should encourage the parties to reach a settlement at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. 24 More details about the Council of Europe at: 25 Winston Churchill Prime Minister of the United Kingdom; Konrad Adenauer Chancellor and Minister for Foreign Affairs of the Federal Republic of Germany; Robert Schuman French Republic Minister for Foreign Affairs; Paul-Henri Spaak Prime Minister and Foreign Minister of Belgium; Alcide de Gasperi Prime Minister of the Republic of Italy; Ernest Bevin United Kingdom Secretary of State for Foreign Affairs. 42

43 Figure 4.1 The Council of Europe membership evolution 1949 Present Stage I Beginning 5 May 1949 Stage II Western Consolidation Stage III Eastern Expansion 1990-Present 10 Founding States: Belgium; 13 States: Greece; ; Turkey Iceland; Denmark; France; Ireland; Italy; Germany (West); Austria; Cyprus; Luxembourg; Netherlands; Switzerland; Malta; Portugal; Spain; ; Marino San ; Liechtenstein Sweden and United ; Norway State; Not an European Union Member 24 States: Hungary; Poland; Bulgaria; Estonia; Lithuania; Slovenia; Czech ; Andorra Republic; Slovakia; Romania; ; Macedonia ; Moldova ; Albania Latvia; ; Armenia ; Georgia ; Russia ; Ukraine Canada, Japan, Mexico, the United States and the Holy See have observer status. In their efforts to enhance the human rights agenda in Europe the Council of Europe adopted two extremely important treaties, namely the Convention for the Protection of Human Rights and Fundamental Freedoms 26 in 1950 and the European Social Charter 27 in 1961 which all EU Member States have signed and ratified. The European Convention on Human Rights provisions on discrimination are included in Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. To this end, the enforcement of ECHR is done through the ECtHR 28. Its role is to ensure that ratifying states respect and protect the civil and political rights set out in the ECHR. As a result, the ECtHR s rulings and decisions shape the national frameworks and legislations on equality and discrimination from EU Member States, since all have signed and ratified ECHR. From the statistics available The European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in The text is available at: 27 More details about the European Social Charter at: 28 The European Court of Human Rights is an international court set up in It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. More information available at: 29 More info at: 43

44 between 1959 and 2015 the European Court of Human Right had 242 cases of non-compliance with Article 14 of the European Convention on Human Rights. The situation of EU Member States in terms of cases brought to the ECtHR on violation of Article 14 is presented in the table below. Table 4.1 Lists of EU Member States with and without cases on Article 14 at ECtHR List of EU Member States with cases on Article 14 Austria(26), Belgium(9), Bulgaria(8), Croatia(4), Cyprus(3), Czech Republic(2), France(9), Germany(12), Greece(14), Hungary(5), Ireland(1), Italy(5), Latvia(1), Lithuania(5), Luxemburg(1), Malta(3), the Netherlands(3), Poland(4), Portugal(1), Romania(30), Slovak Republic(2), Slovenia(1), Spain(4), Sweden(1) and the United Kingdom(44). Source: ECtHR statistics 30 List of EU Member States without cases on Article 14 Denmark, Estonia and Finland. Another important contribution of the Council of Europe to the equality and non-discrimination agenda is the European Social Charter. This is also an international treaty which has been further revised 31 since 1961 when it was first adopted. It contains a series of provisions covering equality and discrimination, especially in employment and occupation. More specifically, in Part V Article E on Non-discrimination established: The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status. Other parts of the Charter relevant and important for shaping the equality and non-discrimination framework in the EU Member States are: Article 3 Para 3 to recognise the right of men and women workers to equal pay for work of equal value ; Article 20 The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex; 30 ECtHR statistics available at: In brackets the number of cases raised on Article 14 at the European Court of Human Rights. 31 Treaty No.163 adopted in Strasbourg on 03 May

45 Article 26 The right to dignity at work [ ] to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct; and Article 27 The right of workers with family responsibilities to equal opportunities and equal treatment. Figure 4.2 sets out the stepping stones by which the present situation has evolved for all European states. Note that these institutions cover a wider community than the 28 current EU members, essentially to all 47 members of the Council of Europe. All these institutions therefore operate at a level above that of the EU. 45

46 Figure 4.2 Council of Europe human rights framework stepping stones 1949 Treaty of London marks the creation of Council of Europe 1959 The European Court of Human Rights (ECtHR) is estabished 1996 The European Social Charter is Revised 1950 The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is signed in Rome 1961 The European Social Charter is adopted 1999 The Commissioner for Human Rights is established The Commissioner for Human Rights was established in 1999 as an independent and impartial nonjudicial institution to promote awareness of and respect for human rights in the 47 Council of Europe member states. The objectives and mandate were set in Resolution (99) 50 on the Council of Europe Commissioner for Human Rights. Namely, the Commissioner s roles are: to foster the effective observance of human rights and to assist states in the implementation of human rights standards; to promote education in and awareness of human rights in Council of Europe states; to identify possible shortcomings in the law and practice concerning human rights; to facilitate the activities of national ombudsperson institutions and other human rights structures; and to provide advice and information regarding the protection of human rights across the region. The Commissioner developed strong ties with international (UN, EU, Organization for Security and Co-operation in Europe (OSCE)) and national institutions, human rights NGOs, universities and think-tanks More details about the Council of Europe Commissioner for Human Rights are available at: 46

47 All the aforementioned provisions coupled with the articles of the ILO Convention no. 111 of represent the core of the international framework that EU Member States respect. These provisions and articles guide their national efforts for promoting equality and non-discrimination in employment and occupation. The international level, especially the UN and ILO provisions in terms of equality and discrimination are also relevant for Korea, and noticeably influenced the national legislation adopted to enhance equality and eliminate discrimination on various grounds European Union level Treaties The rights and common principles set in the international documents were also included in the treaties that shaped the evolution of the European Union and were further developed in the binding legislation adopted. The provisions of this intermediate level (sometimes known as the EU acquis) represent another important legal source that influences the national legislation of EU Member States. The process that led to the creation of the European Union as we know it today is shown in Figure 4.3 and started in 1951 with the Treaty of Paris that marked the creation of the ECSC. A provision regarding non-discrimination based on nationality could be found in the Article 68 Para 4 33 of this Act. The Treaty of Rome (first version of the Treaty on the Functioning of the European Union) adopted on 25 March 1957 marked the creation of the EEC. It maintained the provision on nondiscrimination based on nationality 34 and added the principle that men and women should receive equal pay for equal work. 35 The next important chapter in the evolution of the European Union is the Treaty of Maastricht (Treaty on European Union) which was adopted in It introduced several additions and 33 [ ]will prohibit any discrimination in remuneration and working conditions between national workers and immigrant workers[ ] 34 Article 48 Para 2 35 Article

48 amendments to previous treaties and streamlined EU institutional architecture, roles and functioning of the Union. The Protocol on Social Policy 36 included provisions on equality between men and women and on equal pay without discrimination based on sex. The latest chapter in the evolution of the European Union was marked by the adoption of the Treaty of Lisbon in 2007 which amends the two treaties that form the legal basis of the EU. Also, it brought additional clarity in the decision-making process and consolidated the legal personality of the EU. 36 United Kingdom opted-out from this Agreement until 1997 and the adoption of Treaty of Amsterdam integrated this chapter in the main text of the Treaty on European Union. 48

49 Figure 4.3 Timeline and evolution of European Union Treaties Timeline of European Union Treaties and evolution, source: 49

50 Nowadays, the two treaties that represent the legal basis of the European Union and for every action taken by the EU are the consolidated version of the Treaty on European Union (TEU) 38 which lays down the basic structures and the consolidated version of the Treaty on the Functioning of the European Union (TFEU) 39 which elaborates the TEU. TEU and TFEU are binding agreements between EU Member States that set out basic principles, objectives, rules for EU institutions, decision making processes and the relationship between the EU and its Member States. The two treaties have been approved voluntarily and democratically by all EU Member States. Consequently, equality is one of the founding values of the European Union and all Member States should make efforts to combat social exclusion and discrimination and promote equality between women and men. Also, In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. 40 The consolidated version of the Treaty on the Functioning of the European Union contains several provisions dealing with equality and discrimination on various grounds. These provisions serve as basis for adopting binding documents such as directives to enhance equality and non-discrimination in the EU. Some of the TFEU relevant provisions are: Article 8 In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. Article 10 In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 18 [ ] any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination. 38 The full text of the TEU is online here: 39 The full text of the TFEU is online here: 40 The Consolidated Version of the Treaty on European Union: Article 2, Article 3, Para 3 and Article 9. 50

51 Article 19 [ ] the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 2. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of Union incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1. Article [ ]2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Article Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 2. For the purpose of this Article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. 3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order 41 Based on this provision of this article the EU citizens looking for a job and residing in another EU country are entitled to enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages. 51

52 to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. Apart from the provisions on equality and discrimination included in the treaties, other documents relevant for the European Union level are the Charter of Fundamental Rights of the European Union 42, the Community Charter of Fundamental Social Rights of Workers 43 and several directives adopted for designing a common framework for all EU Member States. Along with the evolution of the legal basis, the European Union expanded also in terms of membership from the 6 founding states (France, Germany (West), Italy, Belgium, Netherlands and Luxembourg) back in 1952 to 28 Members States in 2013 with the accession of Croatia. The enlargement took place in several steps: 1973 United Kingdom, Ireland, Denmark; 1981 Greece; 1986 Spain, Portugal; Austria, Sweden, Finland; 2004 Poland, Hungary, Czech Republic, Slovakia, Slovenia, Estonia, Latvia, Lithuania, Malta, Cyprus; Romania, Bulgaria; 2013 Croatia. 42 The Charter was proclaimed in 2000 and became legally binding since 2009, includes all fundamental rights and freedoms protected in the EU. The Charter has six titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. More information available at: 43 The Charter of Fundamental Social Rights for Workers was adopted in 1989 and included the basic principles on which the European labour law model is based. Its provisions were kept in the TFUE and in the Charter of Fundamental Rights of the European Union. 52

53 Figure 4.4 Enlargement process of the EU to 28 Member States Source: European Commission - Audiovisual Service Directives Directives are legal acts of the European Union that requires Member States to take action. In the subject area of this Study they are directives to achieve equality and ward off discrimination on specific grounds. Although, the directives are binding documents for the Member States they provide a certain amount of room for manoeuvre in developing the national legislation that transposes the Directives provisions into national law. 53

54 The first Directive (75/117/EEC) 44 aiming at enhancing equality and removing discrimination in employment and occupation was adopted in Its purpose was to remove differences of payment between women and men and it was further strengthened with the adoption of the Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men' and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC) that was amended by Directive 2002/73/EC. Although limited in scope, aiming only at removing the differences between women and men, these documents have set the standard at EU level in terms of the fight against discrimination and ensuring equality. In order to bring the provisions of these documents up to date, to include the evolving challenges and the Court of Justice of the European Union rulings, the two directives were repelled by the Directive 2006/54/EC of The European Parliament and of The Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). The Recast Directive 2006/54/EC also brought in one document other provisions developed throughout the years to enhance equality between men and women, namely the Directive on equal treatment of men and women in statutory schemes of social security (79/7/EEC), the Directive on equal treatment of men and women in occupational social security schemes (86/378/EEC, amended by Directive 96/97/ EC). Given the expanding discrimination agenda and the transformations undergone by the EU, the general framework needed specific provisions that take into account these trends. In 2000, the EU Member States approved the Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and the Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the first legal document which is directly linked with the provisions included in the ILO Convention no. 111). The provisions of Directive 2000/78/EC set out the standards in terms of equality of treatment in employment and occupation that all EU Member States must achieve. It was up to the Member States to establish and/or amend their own laws, regulations and administrative arrangements in order to ensure equality and remove discrimination in employment and occupation. 44 Council Directive of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (75/117/EEC). 54

55 The Directive 2000/43/EC (The Racial Equality Directive) prohibits discrimination on grounds of racial or ethnic origin and Directive 2000/78/EC (the Employment Equality Directive) on grounds of religion or belief, disability, age and sexual orientation. They provide protection in employment and vocational training, and more specifically in education, social security and healthcare, and access to and supply of goods and services, including housing. 45 Also, these directives combat direct and indirect discrimination, harassment, instruction to discriminate and victimization and require Member States to provide efficient sanctions and remedies. Figure 4.5 Core Directives on equality and discrimination timeline Directive (75/117/EEC) on to the application of the principle of equal pay for men and women Directive (76/207/EEC) on the implementation of the principle of equal treatment for men' and women Directive 97/80/EC on the burden of proof in cases of discrimination based on sex Directive 2002/73/EC ammending Directive (76/207/EEC) 10 Feb Feb Dec Jun Nov Sep Jul-2006 Directive 2000/43/EC Racial Equality Directive 2000/78/EC Employment Equality Directive 2006/54/EC Recast Figure 4.5 sets out the evolution of directives relevant to this Study. Other directives that supplement the core 46 framework and also play the role of enhancing equality and prohibiting discrimination include: the Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex; the Directive 2010/41/EU of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC; the Pregnant Workers Directive (92/85/EEC); 45 Directive 2000/43/EC (The Racial Equality Directive) 46 Directive 2000/43/EC, Directive 2000/78/EC and Recast Directive 2006/54/EC 55

56 the Parental Leave Directive (96/34/ EEC, repealed by Directive 2010/18/EU); the Directive on equal treatment of men and women in the access to and the supply of goods and services (2004/113/EC). Moreover, specific directives were adopted at EU level to enhance protection and ensure nondiscrimination of migrant workers, persons employed with part time and fixed term contracts and temporary agency workers. Principle of non-discrimination between people with atypical working contracts and comparable permanent workers is ensured in the following directives: Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC; Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP; Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. For migrant workers (third country nationals and workers) protection against discrimination in employment is ensured through: Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State; Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers; Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra- corporate transfer Enforcement of Directives According to Article 258 of the TFEU, the European Commission can launch infringement proceedings against EU Member States which fail to fulfil their treaty obligations to transpose the EU Directives into national legislation. Also, in this framework, it may initiate proceedings for non- 56

57 communication of transposition or for non-conformity if the transposition or the implementation is incomplete or incorrect. For the core directives on equality and discrimination there are no infringement proceedings in place. In order to follow up the transposition and implementation of Directives in the EU Member States, the European Commission presents regularly reports detailing the situation encountered. In 2014, the European Commission adopted its latest report 47 regarding the implementation of the Racial Equality Directive and the Employment Equality Directive in the EU Member States. In this report the Commission emphasizes that all 28 Member States have transposed the Directives and that there are still challenges in implementation and application of these provisions. Another important pillar of enforcement on the European level is the Court of Justice of the European Union (CJEU). 48 Its role is to ensure that the EU law is interpreted and applied in a similar way in each and every EU Member States, and also to ensure that countries and the EU institutions abide by the EU law. The Court interprets the EU law and settles legal disputes between national governments and EU institutions. The court is open to all individuals resident in the EU. In certain circumstances, it can be used by individuals, companies or stakeholders to take action against EU institutions, if they believe that through their actions these institutions somehow violated their rights National level In most EU Member States (with the exceptions of Denmark and the United Kingdom) the Constitution comprises the prime statement of the principles of equality and non-discrimination. Apart from the provisions included in the most important law of the state, all EU Members States have put in place a rich body of national laws that aim at enhancing equality and eliminating discrimination. 47 Report from the Commission to the European Parliament and the Council, Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ( Racial Equality Directive ) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ( Employment Equality Directive ),Brussels, COM(2014) 2 final 48 More details available at: 57

58 The national legislation framework on equality and non-discrimination that EU Members States adopted is very diverse. It varies from single pieces of legislation that cover multiple grounds of discrimination, which is the case in Croatia, Czech Republic, Poland, Slovakia and Sweden, to multiple pieces of legislation covering specific grounds of discrimination, which is the case in all other EU Member States. Interesting situations could be encountered in federal states which have a two-tier system. The first tier 49 includes the provisions adopted by national parliaments (federal level) and the second tier 50 the legislation on equality and non-discrimination put in place at provincial level by the regional parliaments. A somehow similar situation is registered in the United Kingdom, the general provisions are included in the Equality Act of 16 February 2006, with subsequent amendment, and several specific laws on equality and non-discrimination were adopted in Northern Ireland. 51 The grounds for discrimination included in Article 1 of the Convention no. 111, namely race, colour, sex, religion, political opinion, national extraction or social origin, and in the relevant binding documents at international and EU level were incorporated in various forms in the national legislation of the Member States. In the process of developing their national pathways, the EU Member States enrich their legislation with specific provisions aimed at enhancing equality and combating discrimination on other grounds than those covered by Convention no These specific grounds include: 49 In Austria, the federal framework includes the Federal Equal Treatment Act of 23 June 2004 and Federal Disability Act of 10 August 2005, with subsequent amendments. In Belgium, the federal level is based on the Racial Equality Federal Act and the General Anti-discrimination Federal Act, with subsequent amendments. 50 E.g. Austria: Styrian Equal Treatment Act of 28 October 2004; Viennese Service Order of 22 September 2006; Tyrolian Equal Treatment Act of 11 January 2005; Tyrolian Anti-discrimination Act of 31 March 2005; etc. In Belgium: Flemish Region / Community: Decree establishing a Framework Decree for a Flemish Equal Opportunities and Equal Treatment Policy of 28 March 2014; Wallonia-Brussels Federation: Decree on the Fight Against Certain Forms of Discrimination of 12 December 2008 and Walloon Region: Decree on the Fight Against Certain Forms of Discrimination, including discrimination between Women and Men, in the fields of Economy, Employment and Vocational Training of 6 November In Northern Ireland: Race Relations Order of 19 March 1997, with subsequent amendments; Disability Discrimination Act of 8 November 1995, with subsequent amendments; Employment Equality Regulations of 1 December 2003; Fair Employment and Treatment Order of 16 December 1998, with subsequent amendments; Employment Equality (Age) Regulations of 1 October 2006, with subsequent amendments; Equality Act (Sexual Orientation) 2003, with subsequent amendments. 58

59 disability of a relative (Austria - Styrian Equal Treatment Act of 28 October 2004); civil status, birth, property, religious or philosophical belief, actual or future state of health, physical characteristic, trade union opinion and language, genetic characteristic (Belgium - General Anti-Discrimination Federal Act); wealth/income, pregnancy, childbirth, maternity leave, gender reassignment and transgender (Belgium regional legislation); education, human genome, personal or social status, family status, property status (Bulgaria - Protection against Discrimination Act of 16 September 2003); marital or family status, genetic heritage, gender identity and expression (Croatia - Antidiscrimination Act of 9 July 2008); industrial activity, family ties (Finland - Non-Discrimination Act adopted 30 December 2014); last name, place of residence (France - Law No of 16 November 2001, relating to the fight against discriminations of 16 November 2001); sexual identity (Germany - General Act on Equal Treatment of 14 August 2006); maternity (pregnancy) or paternity, part-time nature of employment, legal relationship or other legal relationship relating to employment or the fixed period thereof, belonging to membership of an interest representation organisation, other situation, attribute or condition of a person or group (Hungary - Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities of 28 December 2003); membership of the Traveller 52 community (Ireland - Employment Equality Act of 18 June 1998and Northern Ireland: Race Relations Order of 19 March 1997); potential pregnancy (Malta - Employment and Industrial Relations Act of 2 December 2002); ancestry, work capacity, chronic disease (Portugal - Law 7/2009 Labour Code); non-contagious chronic disease, HIV positive status, belonging to a disadvantaged group (Romania - Government Ordinance no. 137/2000 regarding the prevention and the punishment of all forms of discrimination of the 31 August 2000, last amended in 2013); 52 Ethnic group 59

60 financial situation or other personal circumstance (Slovenia - Employment Relationship Act of 5 March 2013, replacing the act of 2002). 53 These diverse approaches employed by the EU Members States are based on the specific national situations and on the challenges identified in practice throughout the years. Equally important issues are the enforcement of legislative provisions and access to justice for victims of discrimination. In line with EU provisions, Member States have the obligation to ensure that judicial proceedings (civil, criminal, labour and/or administrative) are in place for all individuals who were victims of discrimination. National courts must provide effective protection and access to the judicial procedures needs to be guaranteed. Still, a series of hurdles in accessing the judicial system for victims of discrimination have been identified by different studies, 54 these include: short time limits for initiating a claim; the discouraging effect of the loser pays principle applied by many countries; the length and cost of proceedings; and limitations in availability of legal aid. Also, some discrimination disputes could be solved before entering the judicial system through non judicial proceedings, mainly mediation and conciliation. These non-judicial options are available in most EU Members States and take the form of mandatory 55 procedures of the court proceedings or separately 56 from the judicial system. 53 European Commission, Directorate-General for Justice and Consumers, A comparative analysis of nondiscrimination law in Europe 2015, A comparative analysis of the implementation of EU non-discrimination law in the EU Member States, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia and Turkey, Prepared by Isabelle Chopin and Catharina Germaine for the European network of legal experts in gender equality and non-discrimination, Luxembourg: Publications Office of the European Union, Comparative study on access to justice in gender equality and anti-discrimination law Report prepared by Milieu Ltd. for DG Justice of the European Commission under Contract No. VC/2009/0288., available at: and the European Union Agency for Fundamental Rights (FRA) report on Access to justice in cases of discrimination in the EU Steps to further equality available at: 55 France, Italy, Portugal, Spain and Sweden 56 Croatia, Hungary, Romania and Slovakia 60

61 Note that a citizen of an EU Member State who experiences discrimination and cannot find satisfaction in her own country is able to appeal beyond the national legal system to both the Court of Justice of the European Union and the European Court of Human Rights (Council of Europe court system). 61

62 4.2. Case study ITALY International and European level Italy was an early adherent to international institutions and a founding member of core European institutions. Italy joined the International Labour Organization on 19 October 1945 and the United Nations in December Also, Italy ratified the Convention no. 111 in August In Europe, Italy played a major role in developing the core institutions, being a founding member, in 1949, of the Council of Europe along with Belgium, Denmark, France, Ireland, Luxembourg, Netherlands, Norway, Sweden and the United Kingdom. Also, a founding member along with Belgium, France, Luxembourg, Netherlands and Germany (west) of the ECSC established after the Treaty of Paris (1951) and later of the EEC created by the Treaty of Rome (1957), which entered into force on 1 st of January Figure 4.6 Italy Timeline Member of ILO Constitution of the Italian Republic Article 3 Founding Member of the Council of Europe Member of the UN Founding Member of the European Economic Community Ratification of Convention no.111 Ratification of European Social Charter Revised Legislative Decree No 215/2003 and Legislative Decree No 216/

63 National level provisions and legislation The Constitution of the Italian Republic was adopted on 22 nd December 1947 and entered into force on 1 st January Article 3 contains the reference to equality and non-discrimination: All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic and social nature which in fact limit the freedom and equality of citizens, impede the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country. Article 37 clarifies that: working women have the same rights and, for equal work, the same wages as working men. The working conditions must allow women to carry out their essential role in the family and ensure special adequate protection for the mother and the child. 57 In terms of main legislation enacted to ensure equality and combat discrimination, Italy adopted the following: Legislative Decree No. 215/2003 transposing Directive 2000/43/EC (discrimination on grounds of racial and ethnic origin); Legislative Decree No 216/2003 transposing Directive 2000/78/EC (discrimination on grounds of religion or belief, age, disability and sexual orientation); the Law 67/2006 containing provisions on the Judicial Protection of Persons with Disabilities who are Victims of Discrimination; and Legislative Decree no. 198 of 11 April 2006 (known as the Code for equal opportunities between women and men) which aims at achieving complete equality between women and men Administrative level - Equality bodies National Office against Racial Discrimination (Ufficio Nazionale Antidiscriminazioni Razziali- UNAR) - was established by the Legislative Decree no. 215/2003 and has been functional since November 57 Original text: and the English version available at: consulted on 3 August

64 2004. Its main role is to promote equal treatment and remove all forms of racial and ethnic discrimination. In employment field UNAR monitors the following grounds of discrimination: race and ethnic origin, age, disability, sexual orientation, religion and belief. UNAR main roles include: providing assistance to victims in proceedings undertaken at the administrative court, through the actions of a dedicated contact centre; carrying out investigations in order to verify the existence of discrimination; promoting the adoption of positive action in partnership with relevant stakeholders; conducting awareness-raising and communication campaigns; issuing recommendations and opinions related to discrimination based on racial and ethnic origin; drawing up two annual reports, one for the Parliament and one for the President of the Council of Ministers; and promoting studies, research, training and exchange of experience, in collaboration with associations and non-governmental organisations working in the field, in order to draw up guidelines or codes of conduct in the fight against discrimination based on racial or ethnic origin. 58 The National Equality Councillor (Consigliera Nazionale di Parità) 59 was established through the Legislative Decree no. 198 of 11 April 2006 to promote and monitor the implementation of the principles of equal opportunity and non-discrimination between women and men and to combat gender discrimination in the labour market. The National Councillor is appointed by decree of the Minister of Labour in consultation with the Minister for Equal Opportunities. The Councillor has the obligation of reporting to court the offenses identified. The Councillor develop actions and projects that aim at ensuring equality and combating gender discrimination together with labour inspectors and other relevant stakeholders. Also, in addition to the national level representation, the law provides that Equality Councillors are established at regional and provincial level. 58 More information on UNAR available at: 59 More information on National Equality Councillor available in Italian language at: Parita/Pagine/default.aspx 64

65 4.3. Case study ROMANIA International and European level Although it was under communist dictatorship, Romania was enthused about staying close to the development of human rights at the international level. On 14 December 1955 through the adoption of Resolution 995 of the General Assembly of the United Nations Romania, along with Italy and another 14 states, were granted the status of members of the UN. In its efforts to remain active in international fora, Romania also joined the ILO on 11 May 1956 and ratified the Convention no. 111 on 6 June Nevertheless, integration into the processes developed in Europe wasn t early or smooth, and only happened after the collapse of the communist regime in Romania became a member of the Council of Europe on 7 October 1993 and ratified the Revised European Social Charter in The final step toward full integration at the European level was taken on 1 st January 2007, when after a long negotiation, Romania became a Member of the European Union along with its southern neighbour Bulgaria. Figure 4.7 Romanian Timeline 65

66 National level provisions and legislation The New Constitution 60 was developed by the first Romanian Parliament (1990) freely elected after the communist era and was adopted through National Referendum on 8 December The provisions regarding equality and non-discrimination are included in: Article 4 (1) The State foundation is laid on the unity of the Romanian people and the solidarity of its citizens. (2) Romania is the common and indivisible homeland of all its citizens, without any discrimination on account of race, nationality, ethnic origin, language, religion, sex, opinion, political adherence, property or social origin. Article 16 (1) Citizens are equal before the law and public authorities, without any privilege or discrimination. (2) No one is above the law. (3) Access to public, civil, or military positions or dignities may be granted, according to the law, to persons whose citizenship is Romanian and whose domicile is in Romania. The Romanian State shall guarantee equal opportunities for men and women to occupy such positions and dignities. (4) After Romania's accession to the European Union, the Union's citizens who comply with the requirements of the organic law have the right to elect and be elected to the local public administration bodies. Article Para (4) On equal work with men, women shall get equal wages. The Government Ordinance no.137 of 31 August 2000 on preventing and sanctioning all forms of discrimination, with subsequent amendments, represents the main legislative document that 60 The English text of the Romanian Constitution is available at: 61 Article 38 in the original text adopted in In 2003 through the adoption of Law no. 429 the Romanian Constitution was revised and completed. 66

67 defines discrimination 62 in general, sets the framework for sanctioning discriminatory acts and the public body with authority to enforce the provisions, namely the National Council for Combating Discrimination. The Labour Code (Law 53/2003 republished) in Article 5 Equal Treatment states that: (1) The principle of equal treatment for all employees and employers shall operate within the framework of the employment relationships. (2) Any direct or indirect discrimination against an employee based on sex, sexual orientation, genetic characteristics, age, national affiliation, race, colour, ethnicity, religion, political option, social origin, disability, family situation or responsibility, trade union affiliation or activity shall be prohibited. (3) The acts and deeds of exclusion, distinction, restriction or preference, based on one or several of the criteria referred to in paragraph (2), which have the purpose or effect of denying, restraining or removing the recognition, enjoyment or exercise of the rights provided for in the labour legislation shall constitute direct discrimination. (4) The acts and deeds apparently based on other criteria than those referred to in paragraph (2), but which effect to a direct discrimination, shall constitute indirect discrimination. 63 Law No. 202/2002 on equal opportunities between women and men, republished in 2013, establish the measures to promote equality of opportunity and treatment between women and men, to prohibit and eliminate all forms of discrimination based on sex, in all spheres of public life in Romania. This law also enhances the role of Labour Inspection in finding and sanctioning discrimination offenses based on sex in employment and occupation. Law No. 448/2006 on the protection and promotion of the rights of persons with disabilities, republished in 2008, was adopted to enhance protection and promote participation in society of 62 Article 2 Discrimination represents any distinction, exclusion, restriction or preference based on race, nationality, ethnicity, language, religion, social status, belief, sex, sexual orientation, age, disability, noncontagious chronic disease, HIV infection, belonging to a disadvantaged group and any other criterion which has the purpose or effect restriction, removal of recognition, use or exercise, on an equal basis, the human rights and fundamental freedoms or the rights recognized by law, political, economic, social and cultural or any other field of public life. 63 The Romanian Labour Code (English translation) available at: 67

68 persons with disabilities. It includes measures aimed at removing obstacles faced and at increasing participation into the labour market of persons with disabilities Administrative level - Equality bodies The National Council for Combating Discrimination 64 (Consiliul National pentru Combaterea Discriminarii - CNCD) - was establishes in 2000 through the Government Ordinance no.137 as an autonomous state authority, under parliamentary control. It deals with discrimination on 14 grounds, namely race, nationality, ethnicity, language, religion, social status, belief, sex, sexual orientation, age, disability, non-contagious chronic disease, HIV infection, belonging to a disadvantaged group and has a predominantly quasi-judicial role. The Council performs its duties in the following areas: prevents discrimination through information and awareness campaigns on human rights, effects of discrimination, the principle of equality, trainings, information, programs and projects at local, regional and national level, studies, reports; mediates between parties involved in the cases of discrimination; investigates, establish and applies sanctions in discrimination cases; Formally decides on complaints issuing decisions or recommendations which are legally binding; monitors cases of discrimination brought to Court and parties involved; and provides specialized assistance to victims of discrimination. According to its Annual Report in 2014 CNCD dealt with 778 complaints out of which 329 where regarding access to employment and occupation. National Agency for Equal Opportunities between Women and Men (Agentia Nationala pentru Egalitate de Sanse intre Femei si Barbati -ANES) was first created in 2002 with the adoption of Law no. 202/2002 on equal opportunities between women and men, and re-established in 2015 with the adoption of Law 229 for amending and completing the Law 202/2002. The main functions of ANES established in law are: 64 More details (Romanian language) available at: 68

69 strategic developing and implementing the strategies and policies on equal opportunities and gender equality; legislative harmonising the national legislation with EU regulations; and state authority that ensures the integration of active and visible gender perspective into all policies and programs, enforcement and compliance with regulations in force. The National Authority for Persons with Disabilities (Autoritatea Nationala pentru Persoanele cu Dizabilitati) is a state agency subordinated to the Ministry of Labour and Social Justice with the mandate of protecting and promoting the rights of persons with disabilities. The Authority cooperates with the National Employment Agency in order to enhance participation of persons with disabilities into the labour market, but it has no clear competencies in terms of ensuring equality and combating discrimination against persons with disabilities in employment and occupations. 69

70 5. The legal and administrative framework in Korea This chapter presents the current legal and administrative framework relating to discrimination in Korea, with regard to the implementation of ILO Convention no It will be seen that most of the legislation which applies to the area of discrimination predates the signing of the Convention in In fact, a careful study of this period shows that from the moment President Kim Dae-jung was elected in December 1997, a series of initiatives were taken building on those taken since 1987, which prepared Korea for signing the Convention: preparing for the Tripartite Commission to manage labour relations; preparations for an equity institution, namely the Korean National Human Rights Commission; as well as what would become the Ministry of Gender Equality. All of this was ongoing while most Koreans had eyes only for the tremendous shock of the Asian Crisis. The convention was signed when the government had many pressing concerns other than labour rights, so the preparing an ILO compliant environment at this time can be regarded as a considerable achievement. Unlike the European pre-eu history of human rights and labour rights protection, the Republic of Korea had no law higher than national law until signing the ILO Conventions and related UN conventions on the non work sphere. The Republic of Korea became a full member of the United Nations system only in 1991, and had joined the ILO at the same time. The following diagram shows a comparable timeline to that of the EU. It can be seen that the basic framework was implemented by Laws predating this period were updated routinely down to the revision of the Basic Framework for Employment Act of

71 Figure 5.1 Timeline of major Korean Labour and Human Rights Initiatives Constitution Constitution rewritten creates new Constitutional Court 1988 Joined ILO Ratified Convention no.81 Ratified Convention no.100 Ratified Convention no. 111 Ministry of Gender Equality Founded National Human Rights Commission 1. August Oct Dec Dec Dec Dec Jan Nov Constitution The Republic of Korea s constitution dates from 1948 Constitution, mainly. It was drafted by Dr. Chin-O Yu, and provided for central control under the President, but not originally for direct Presidential elections. It has been partially amended nine times and wholly amended 4 times (constitutions of 1962, 1972, 1980, 1987). Reflecting the influence of thinking in the 1940s, sections include all the rights normally found in the US and European constitutions, including the basic human rights. of equal opportunity, equality and individual freedom plus a guarantee of due legal process. Those detained or arrested must be informed of the reason and of their right to an attorney, and family members must be informed. Warrants must be issued by a judge "through due procedures," and accused persons may sue for wrongful arrest in certain cases. The Constitution of the Republic of Korea was last revised in 1987, and from the time it was first promulgated it has provided the basic principles against discrimination. Article 11 refers to equality in all areas, and Article 32 refers to labour rights, minimum wages, and protection of women and children in the work place. Article 34 relates to the welfare of citizens and affirmative action for women, the elderly, the young and the disabled. 71

72 The Constitution made no mention of resident non-citizens, as in 1987 there were few not covered by the SOFA (Status of Forces Agreement) and the majority were US soldiers, Department of Defence (DoD) personnel and their families. The relevant provisions are as follows: Article 11 1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status. (2) No privileged caste shall be recognized or ever established in any form. Article 32 (1) All citizens shall have the right to work. The State shall endeavour to promote the employment of workers and to guarantee optimum wages through social and economic means and shall enforce a minimum wage system under the conditions as prescribed by the Act. (2) All citizens shall have the duty to work. The State shall prescribe by the Act the extent and conditions of the duty to work in conformity with democratic principles. (3) Standards of working conditions shall be determined by the Act in such a way as to guarantee human dignity. (4) Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages and working conditions. (5) Special protection shall be accorded to working children. (6) The opportunity to work shall be accorded preferentially, under the conditions as prescribed by the Act, to those who have given distinguished service to the State, wounded veterans and policemen, and members of the bereaved families of military servicemen and policemen killed in action. Article 34 (1) All citizens shall be entitled to a life worthy of human beings. (2) The State shall have the duty to endeavour to promote social security and welfare. (3) The State shall endeavour to promote the welfare and rights of women. (4) The State shall have the duty to implement policies for enhancing the welfare of senior citizens and the young. (5) Citizens who are incapable of earning a livelihood due to physical disability, disease, old age or other reasons shall be protected by the State under the conditions as prescribed by the Act. (6) The State shall endeavour to prevent disasters and to protect citizens from harm therefrom. 72

73 Article 119(2) was amended in the last revision in 1987, to reflect a stronger emphasis on the need for stable and balanced growth rates, "proper distribution of income", and preventing "abuse of economic power" which are explicitly listed as goals of the government. The regulatory goal to "democratize the economy through harmony among economic agents" in the same Article reflects the strong prevalence of traditional Korean values and the close relationship between politics and the economy. The Constitution affirms both the right and the duty to work, requiring regulation of minimum wages and working conditions. Workers have the right to independent association, collective bargaining, and collective action. The basic statutes expand on the constitution, creating five major labour laws which guide most work place procedures National Laws with Anti-Discrimination Provisions As noted, the Constitution prescribes that statutory laws be passed to cover a number of situations. Again, many of these laws predate the signing of the ILO Convention no Most of these laws have been substantially revised since their enactment to take into account changing perceptions of work place and recruitment policy. A list of the relevant laws and their dates of enactment are below: Framework Act on Employment Policy (enacted 1 July 1994) This Act aims to enable each citizen to develop vocational skills throughout his/her life and to enjoy greater employment opportunities through the establishment and implementation of employment policies by the State, and (i) to contribute to social integration by improving people s quality of life and sustainable economic growth, and (ii) to contribute to employment, by supporting employment security for the creation of jobs, and the seamless securing of human resources by businesses, and by promoting the efficiency of the labour market and a balance between labour supply and demand. This Act covers many of the conditions which apply to employment policy. An amendment to the Framework Act on Employment Policy (the main features of which include banning discrimination in recruitment and hiring on the ground of educational attainment, requiring an employment 73

74 impact evaluation to be conducted prior to a big budget project and declaring employment disaster zones) entered into force on July 22nd This measure included the removal of information in job applications which might prior to interview prevent candidates from being called to interview, such as a photograph or university attended. A similar policy applied by Germany was noted as good practice by the ILO. The 2015 ILO Committee of Exports requested details of why discrimination on grounds of race and certain other issues were omitted Labour Standards Act (enacted 13 March 1997, wholly amended 9 October 2009) This Act revised the older Labour Standards Act dating back to 1953, which in turn codified the previous Labour Standard Ordinances of the provisional government of the 1940s, and were similar to those imposed on Japan by the American Military Government. It sets the standards for terms and conditions of employment in conformity with the Constitution, thereby securing and improving the fundamental living standards of workers and achieving a well-balanced development of the national economy. This Act is the principal statute governing employment-related matters in Korea, and contains provisions relating to working hours, working conditions, severance payments, and other detailed employment conditions. Workers who feel that their rights under the act have been violated may recourse to the local Labour Office which has the legal power to impose administrative penalties on non-compliant companies including ordering reinstatement of workers laid off for non-justifiable reasons. The opinion of employers (including EU invested companies) is that the law as it stands fails to allow management the right to dismiss non-performing workers. The opinion of the unions is that the law fails to protect about half the workforce of Korea who are not regarded as permanent employees. The labour offices and court actions have always supported fixed period contract workers on all rights under the law except dismissal. As this issue is considered by the unions to be a breach of ILO Convention no. 111 it is considered at more length in Chapter Labour Union and Labour Relations Adjustment Act (enacted 13 March 1997) 74

75 The Labour Union and Labour Relations Adjustment Act aims to maintain and improve the working conditions and the economic and social status of workers by securing their rights of association, collective bargaining, and collective action pursuant to the Constitution, and to contribute to the maintenance of industrial peace and to the development of the national economy by preventing and resolving labour disputes through the fair regulation of labour relations Framework Act on Gender Equality (enacted 30 December 1995, wholly amended 28 May 2014) The purpose of this Act is to realize gender equality in all areas such as politics, economy, society, and culture by providing for basic matters with regard to the obligations of the government to implement the principle of gender equality. According to the Act, the Ministry of Gender Equality and Family should establish the basic plan for the implementation of policies about gender equality. The Act also enables the government to found an institution for gender equality and to support the costs of such an institution. The previous name of this Act at the time of enactment was Framework Act on Women s Development, but in the 20 years since its enactment, the policy goal relating to women in Korea changed from Women s Development to Realization of Actual Gender Equality. The Act was wholly amended and renamed to reflect this change. The Ministry has extended its purview as society has changed to take consideration of the special case of multinational families, resulting from marriage of Korean citizens with those of other nationality, whose children face discrimination in school, and who are just reaching employable age. 65 Under the civilian Presidents Kim Young-sam and Kim Dae-jung , more emphasis was put on human rights, although Republic of Korea acceded to the ILO under their predecessor in It ratified its first two conventions in 1992, conventions no. 81 (labour inspectors) and no. 122 (employment policy). Convention no. 100 (Equal pay) was ratified in 1997 and no. 111 in In accordance with the Convention no.122 (employment policy), a trilateral 65 From about 2000, the gender imbalance led to about 10% of marriages in succeeding years (currently reduced to 7%) being between a Korean citizen and a non Korean citizen. 75

76 structure of employers, labour and government was created in 1998 as a consultative body to determine labour policy, in line with ILO recommended best practice. All related matters were placed by law under the relevant ministry which was and is responsible for overseeing the governance structure of Labour Commissions (normally referred to as Labour Offices) who oversee individual and collective complaints, and the Labour Inspectorate, which conducts inspections in a selection of work places according to political and social direction. Gender issues were felt important enough under President Kim Dae-jung to require creating the establishment of a Presidential Commission on Women's Affairs created on 28 February The current Ministry was formed on January 29, 2001 (currently the Ministry of Gender Equality and Family) with oversight and governance of aspects of women at work, and later multicultural families. Republic of Korea had already created in 1986 a Minimum Wage Commission under an Act of that year, and minimum wages, at first restricted to manufacturing was steadily extended to include the majority of workers in Republic of Korea, but subject to exceptions. This commission worked in parallel with the Korea Tripartite Commission from 1998, which considered all labour matters and has been involved in labour law reform consideration in 2007 and The final element in the governance structure was the creation of the Korean National Human Rights Commission of Korea (NHRCK) in This equality body was designed with the criteria of the UN Paris Conference of 1993 as the National advocacy institution for human rights protection. It is committed to the fulfilment of human rights in a broader sense, including the dignity, value and freedom of every human being, as set out in international human rights conventions and treaties to which Republic of Korea is a signatory. The NHRCK has the right to investigate and recommend redress of workplace and non -workplace issues. 66 It has no power to either fine offenders or compel compliance Article 1 of the National Human Rights Commission Act defines the objective of the Commission as follows. The purpose of this Act is to contribute to the embodiment of human dignity and worth as well as to the safeguard of the basic order of democracy, by establishing the National Human Rights Commission to ensure that inviolable, fundamental human rights of all individuals are protected and the standards of human rights are improved. 76

77 The NHRCK Act included a key description of discrimination of women and a detailed definition of sexual harassment National Human Rights Commission Act (enacted 24 May 2001) This Act fulfilled an election pledge of then-president Kim Dae-Jung, and in November 2001, the Commission was launched as an independent governmental body. It does not belong to any of the legislative, judiciary, or executive branches of the Korean government. It operates in accordance with the principles relating to the status and function of national human rights institutions for protection and promotion of human rights (the Paris Principles) adopted by the UN General Assembly in In addition, the Gender Discrimination Prevention and Relief Act (enacted 23 July 1999) laid down the basic ground rules for the abolition of gender discrimination and the implementation of laws allowing for relief of discrimination. This Act was abolished in 2005 due to the reorganisation of the Korean government. Thus, the authority for investigation and correction orders pursuant to the Act was transferred from the Ministry of Gender Equality and Family to the National Human Rights Commission Act on the Protection of Dispatched Workers (enacted 20 February 2008) This Act governs the proper operation of worker dispatch undertakings, and establishes standards for working conditions and other matters relating to dispatched workers, thereby contributing to employment security and the welfare of dispatched workers, and facilitating manpower supply and demand Act on the Protection (etc.) of Fixed-Term and Part-Time Employees (enacted 21 December 2006) This Act aims to promote the sound development of the labour market by redressing undue discrimination against fixed-term and part-time workers, and improving their working conditions. It 77

78 limits the length of employment of fixed-term and part-time employees, as well as their hours of daily work, in order to protect their welfare. As will be discussed in Chapter 8, it is this Act which is the most contentious at the present time, as it creates a sub-class of employees who have a maximum fixed term contract of two years. At the end of the two years, the employer must either fire the employee or make them a full time employee. This issue, which has been part of the union complaint against the government s implementation of ILO Convention no. 111 since 2009, is discussed further in Chapter Act on Prohibition of Age Discrimination in Employment and the Promotion of Employment of the Elderly (enacted 31 December 1991) This Act aims to contribute to the employment security of the elderly and to the development of the national economy, by preventing discrimination in hiring practices on the grounds of age without justification, and by supporting and promoting the employment of the elderly to ensure they have access to occupations suitable for their abilities. It prohibits the discrimination based on age without rational grounds, and enables the Ministry of Employment and Labour to order the correction of such discrimination Act on the Promotion of Employment and Vocational Rehabilitation for Disabled Persons (enacted 13 January 1990, wholly amended 12 January 2000 and 25 May 2007) This Act aims to contribute to the employment promotion and vocational rehabilitation of disabled persons, so that they may live a decent life through work suited to their abilities Equal Employment Opportunity and Work-Family Balance Assistance Act (enacted 4 December 1987, wholly amended 14 August 2001) 78

79 This Act aims to contribute not only to improving the quality of all people s lives by assisting workfamily balance of workers generally, but also realising equal employment for both genders. Specifically it guarantees equal opportunity and equal treatment in employment between men and women in accordance with the principle of equality as proclaimed in the Constitution, by protecting motherhood and by promoting the employment of women. The amendment of 2001 gave the newly created Ministry of Gender Equality oversight of this issue, and was a major step in compliance with ILO convention no Act on the Employment (etc.) of Foreign Workers (enacted 16 August 2003) This Act aims to promote a seamless supply and demand of manpower and the balanced development of the national economy by introducing and managing foreign workers systematically. It stipulates certain procedures for entrepreneurs to gain permission for the employment of foreign workers. According to this Act, an entrepreneur who hires foreign workers should purchase departure insurance to ensure such workers can and will depart from Korea when the term of employment expires. This act causes continual problems, both for employers who wish to employ more overseas workers and retain their services for the longest possible time, and for individual employees, for whom it creates a set of administrative hurdles for continued employment Administrative structure and legal implementation The structure of Korean law requires that an Act passed by the National Assembly comes into force and effect when a Presidential Decree is issued, sometimes adding detail or altering the basic law. An Act will also have a corresponding Enforcement Decree which may add or subtract details to or from the Act, and normally designates a certain Ministry to be responsible for the law. Such Ministry may issue guidelines which interpret the law or which cover matters of importance within the general scope of the law. In the past, a Ministry might also have unwritten guidelines. This system allowed flexibility during the years of rapid economic growth. 79

80 The Labour Office System Republic of Korea signed the Convention no. 81 on labour inspectors in Republic of Korea labour inspectorate operates through the headquarters and 47 district labour offices. The relevant ministry employs approximately 1,100 labour inspectors. The majority (78 percent) specialize in labour standards while the remaining inspectors focus on occupational health and safety. Their activities are under the purview of the district labour offices. They are administratively managed by the Labour Standards Policy Bureau or the OSH Bureau of the National Labour Relations Policy Office, depending on their specialty. Labour inspectors are responsible both for responding to allegations of labour law violations brought to district labour offices by workers and employers and for conducting regular detain and arrest employers suspected of violating labour laws, and to order fines, other penalties, and remedies where violations have been found. While inspectors are required to provide ten day notice to employers prior to conducting regular inspections, no such notice is required for special inspections conducted in response to information received regarding working conditions or potential violations. Where the corrective actions or remedies ordered by the inspectorate are not implemented within a specified period or where a penalty is not paid, the inspectorate is required to refer the case to prosecutors. In a typical year, the Labour Inspectors handle 300,000 complaints made by workers (and employers) regarding the law and expect to settle about 80%. Inspections may cover up to 25,000 of the 4.1 million work places in Republic of Korea in one year Labour Relations Commissions In addition to filing complaints with the labour inspectorate, workers and employers may bring allegations of labour violations and labour disputes before quasi-judicial administrative bodies called Labour Relations Commissions (LRC), which serve as the principal entities for adjudication and mediation of labour-related issues in Republic of Korea. The main responsibilities of the LRCs include: mediating or arbitrating labour disputes and providing support for interested parties to autonomously settle their disputes in accordance with the law. The LRCs consist of the following: Regional LRCs, which report to the relevant ministry; a Special LRC, which handles special cases 80

81 prescribed by specific labour laws. The LRCs are comprised of an equal number of worker representatives ( employee members ), employer representatives ( employer members ), and members representing the public interest ( public interest members ), who must meet specific qualifications with regard to expertise and experience, as stipulated in the Labor Relations Commission Act. Their responsibilities include: investigating allegations of violations of labour laws; judging, deciding, making resolutions, and ordering redress of labour violations. These are commonly used for wage bargaining disputes and collective bargaining agreements disputes Implementation of ILO Convention no. 111 The State Council of Korea deliberated on ILO Convention no. 111 on 7 November 1998, and its ratification was registered with the ILO on 4 December On 4 December 1999, 12 months after the date of its registration, ILO Convention no. 111 came into force in Korea. According to the Korean Constitution, international treaties have the same effect as Korean domestic laws. However, this rule does not clarify the level of legal effect of international treaties among the diverse range of domestic laws. Rather, the Constitution only provides that the Korean National Assembly shall have the right to consent to the conclusion and ratification of: treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or the people with an important financial obligation; or treaties related to legislative matters. Therefore, whether international treaties have precedence over domestic laws is still an open question in Korea. The majority opinion among academics recognises the level of legal effect of ILO Convention no. 111 (which took effect without the consent of the National Assembly) as being the same as a Presidential Decrees (which are the subordinate regulations immediately under main statutes). Prior to these reforms the Korean government signed the UN International Covenant on Economic and Social and Cultural Rights in 10 July 1990, some of whose terms are similar to that of ILO Convention no. 111 ILO conventions, writing in their accompanying letter that Human Rights is now the cornerstone of the Republic of Korea. At the time of signing, the government of Republic of Korea stated that international treaties had upon signature the force of law, and in a conflict 81

82 between existing laws and the treaty, the treaty had precedence, but in case of laws passed after the treaty was signed the Supreme Court had jurisdiction 67 Since 4 December 1999, when ILO Convention no. 111 took effect in Korea, the Korean government has made efforts to comply with the Convention, proposing relevant bills to the National Assembly and improving its administrative rules in line with the Convention. No new legislation was enacted immediately, although the recently passed (and now abolished) Gender Discrimination Act led to today s Ministry of Gender Equality and Family being founded as the Ministry of Gender Equality in 2001, replacing the Presidential Commission on Women that had existed since1998. This Ministry would have oversight of multicultural families added to its remit later in its existence. In the same year, Korea s equality body, the National Human Rights Commission, was inaugurated as a long-standing pledge of President Kim Dae-jung. Unlike those European institutions which predated the Paris Principles of 1993, discussed in the following chapter, the Commission was not given any legislative powers (the Paris Principles neither prescribe nor deny such powers). In Chapter 6, the relative situation of the Korean National Human Rights Commission compared with the European equality bodies will be considered. The Commission has dealt with a number of complaints relating to the workplace, but has generally not been effective. The primary government organisation responsible for the implementation of the Convention remained the Ministry of Labour (now the Ministry of Employment and Labour) Attempts to enact the Anti-Discrimination Act There have been three prior attempts to enact what is expected to be named the Anti- Discrimination Act to cope with various kind of discrimination in Korea. This act aims to prohibit unreasonable discrimination based on gender, disability, age, national extraction, ethnicity, race, colour, language, appearance, marriage, pregnancy, religion, political opinion, or social origin in every political, economic, social, and cultural field, including obviously the workplace. Attempts were made in 2007, 2010, and However, each time the bill was proposed to the National Assembly, it quickly became a social problem in Korea because the bill dealt with 67 ILO Archives Fonds Convention No

83 homosexuality issues, causing certain religious groups and civil organisations that were opposed to the bill to protest against it. The third attempt to enact the Anti-Discrimination Act was carried out by the government to ensure the implementation of guidelines set by the United Nations in 2010, but the bill did not pass the National Assembly due to actions of opposition groups, including conservative religious groups. No current plan apparently exists to enact the law at the time of writing Legal procedures for remedying discrimination There are several institutions in Korea which aim to overcome discrimination in the workplace. The Labour Relations Commission has the right to issue a remedial order to an employer if a dismissal is judged to be unfair. In addition, the National Human Rights Commission has the right to recommend to other institutions that they improve or correct specific policies and practices which cause discrimination, as well as the right to present its opinions to those institutions. Furthermore, the Anti-Corruption and Civil Rights Commission has the right to make recommendations to the heads of public institutions to make institutional improvements for the prevention of corruption, and any person in Korea may file a civil petition to recognize grievances with the Commission. In addition, each level of court (including the Constitutional Court) may examine various cases with regard to discrimination. Among the various procedures and results, only orders issued by the Labor Relations Commission and decisions rendered by the courts have binding effect; other procedures only result in recommendations being issued. Because an individual is unable to file a complaint directly to the ILO to seek a remedy for discrimination, individuals must instead file a complaint to the Korean courts or take the issue to a trade union or NGO which would raise it.. As discussed in Section 5.5, international treaties put into effect under the Korean Constitution have the same effect as Korean domestic laws. However, until now there has been no precedent where ILO Convention no. 111 has been directly applied in Korea. Rather, whenever the application of ILO Convention no. 111 has been sought, domestic laws which contain regulations similar to ILO Convention no. 111 have been applied instead. Furthermore, the Korean courts do not acknowledge the binding effect of any recommendation or report issued by the ILO or the UNHRC. In general the Korean Constitutional Court appears to be regarded as having the right to adjudicate on any issue including an international dispute. Thus when the Korean Government states that a case has been 83

84 decided by the Constitutional Court in its report to the ILO Korean legal opinion holds that the case is closed. 84

85 6. International Labour Organisation Fundamental Convention no. 111 This chapter aims to look at the work of the ILO in advising on equality of opportunity and treatment in employment and occupation. The case study at the end of the chapter has the role of summarising the main challenges identified by ILO Committees in EU Member States and the Republic of Korea in terms of compliance with the provisions of the ILO Convention no A longer description of the challenges addressed by the ILO can be founded in Annex II of the current report. For issues raised in ILO reports on the various member states or Korea not mentioned in the text, the reader is referred to Annex II The ILO s ongoing role in advising on discrimination issues through the right of representation of interested parties The ILO also grants an industrial association of employers or of workers the right to present to the ILO Governing Body a representation against any member state which, in its view, "has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party". The representation procedure is governed by Articles 24 and 25 of the ILO Constitution. A threemember tripartite committee of the Governing Body may be set up to examine the representation and the government's response. The report that the committee submits to the Governing Body states the legal and practical aspects of the case, examines the information submitted, and concludes with recommendations. Where the government's response is not considered satisfactory, the Governing Body is entitled to publish the representation and the response ILO Fundamental Convention no. 111 The International Labour Organisation Fundamental Convention no. 111 s scope is to guarantee equality of opportunity and treatment in the labour market and to empower all peoples to develop their skills and competencies according to their aspirations and preferences and to achieve their potential freedom from constraints. 85

86 In the interpretation of the Convention no. 111, eliminating discriminatory practices in the labour market should include all stages of employment relations, namely recruitment, remuneration, retention, promotion and termination of employment, but also, access to vocational training and skills development programmes designed to increase both productivity and employability of individuals. In current ILO thinking the Convention no. 111 is seen as a promotional convention in that the national states should take proactive measures to see that the terms of the convention are implemented in practice. 68 The provisions of the Convention no. 111 were included by all EU Member States in their respective national legislation in a very diverse way, ranging from single legal acts covering all grounds of discrimination or multiple laws covering specific grounds in part. Also, most EU Member States Constitutions specifically contain the principles of equality and non-discrimination. Although the Study extensively covers the legal framework in force at EU level linked with the provisions of the ILO Convention no. 111, the ratification of this international act was done at Member State level through the national laws adopted. Also, most provisions that are not covered in the EU acquis are included in national legislation put in place to combat discrimination and ensure equality. In the Republic of Korea, the project team s understanding is that no law was immediately modified on the ratification of ILO Convention no. 111, but the ILO Convention overlaid any national law then in force. 69 However, whenever existing legislation was revised, attempts were made to bring Korean legal practice into compliance with the Convention. 68 This point was emphasised by Alain Pelce of the ILO in the Seoul workshop 69 Korean laws are frequently passed without repeal of older laws where conflicts must be taken to the courts for decision. 86

87 6.3. Definition of discrimination Discrimination is defined in Article 1 of the Convention No. 111 as: any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Although this is a broad and rather unclear definition, Convention no. 111 is intended to cover all types of discrimination direct or indirect and in law or in practice that could affect equality of opportunity and treatment in employment and occupation. Direct discrimination occurs when a person is treated less favourably than another is, has been or would be treated in a comparable situation. It includes any forms of harassment on specific grounds. Also, in the EU Directives 70 and Member States legislations the instruction to discriminate against persons on specific grounds is considered discrimination. Indirect discrimination refers to apparently neutral situations, provisions or practices which in fact determine an unequal treatment of persons with certain characteristics. It occurs when a general condition or situation has a disproportionate impact on some persons on the basis of their specific characteristics. Different forms of harassments and instruction to discriminate are not directly mentioned in the ILO Fundamental Convention no. 111, but these negative conducts are deemed prohibited under the definition of discrimination included in the Convention. In the Directives adopted at EU level such conducts are defined and their prohibition is reinforced. Harassment is considered discrimination when an unwanted conduct takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. 71 Also, in the case of harassment the EU Member States could choose to define the concept in accordance with the national laws and practice. Additionally, 70 Directive 2000/43/EC Article 2 Para 4; Directive 2000/78/EC Article 2 Para 4 and in Directive 2006/54/EC Article 2 Para (2b) 71 Directive 2000/43/EC Article 2 Para 3; Directive 2000/78/EC Article 2 Para 3 and in Directive 2006/54/EC Article 2 Para (2c). 87

88 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) in Article 2 par. (2d) defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment. The Convention no. 111 includes also some exceptions from what might otherwise be considered discrimination, namely in: Article 1 Par. 2 - Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements ; Article 4 Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State [ ], provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice. ; Article 5 Par. 1 Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference ; Article 5 Par. 2 [ ]other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, these type of positive actions should be developed and agreed with representatives of the social partners. Exemptions in the legislation based on the inherent requirements of the job should be established carefully to ensure that they cover genuine situations related to the performance of a particular job or position. 88

89 Legislators in the EU Members States and in some other states that ratified Convention no.111 adopted two pathways in relation to this exemption. One way was to keep a general statement concerning the exemption and the other was to include along with the general statement a list of specific situations where the exemption is applicable. Excessive use of this exemption and general exclusions of broadly defined occupational groups or jobs under this rule go against the ILO Declaration of 1998 regarding the elimination of discrimination. Although pressed on this point, the government of Republic of Korea does not seem to have ever given a public list of specific situations where the exemption is applicable, although in the unpublished correspondence the scope appears remarkably wide leading the Council of Experts to request that this definition should be much more narrowly defined. The general exemption on Inherent requirements of the job is available in all three EU directives adopted to combat discrimination: shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 72 Additionally, Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation in Article 4 Par. 2 provides an example relevant for the provision of inherent requirement of the job: in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. As for the exception based on state security in the EU context the provision related to this aspect is included in Directive 2000/78/EC Article 2 Par. 5: 72 Directive 2000/43/EC Article 4; Directive 2000/78/EC Article 4 and Directive 2006/54/EC Article 14 Para 2. 89

90 This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. Therefore the EU Member States and Republic of Korea have the freedom of interpreting this exemption in their national legislation, but at the same time they should protect the right to appeal against decisions taken on this ground. In terms of special protective measures, many of the ILO Conventions and Recommendations include provision for specific vulnerable groups in employment and occupations that need additional protection. Many of these provisions apply to women, and are intended to prevent discrimination on the grounds of potential or actual pregnancy and parenthood. Another important aspect is the permission to adopt positive or affirmative actions designed to enhance the labour market integration of specific vulnerable groups. These kinds of provisions aim to reinforce the principle of equality in the world of work. They are included in the EU directives 73 and used by EU Member States to improve participation in the labour market of persons that face one or multiple vulnerabilities. One particular avenue used to encourage positive actions and measures was by securing access to financial support for stakeholders implementing them. In the Republic of Korea, most of these measures have been promoted and enshrined in legislation. In terms of special characteristics, brief mention must be made of the National Security Laws which are intended to prevent Republic of Korea citizens from taking actions which support North Korea or take pro-north Korean positions. Progressive opinion is against such a blanket law but in successive cases the last in 2004, the Constitutional Court has ruled that the law is legal. Kim Daejung argued for a major reform rather than abolition Directive 2000/43/EC Article 5; Directive 2000/78/EC Article 7 and Directive 2006/54/EC Article

91 6.4. Prohibited grounds of discrimination The Convention no. 111 refers explicitly to seven prohibited grounds of discrimination in Article 1 Par. 1(a) namely: race, colour, sex, religion, political opinion, national extraction and social origin. Also, the states that ratify the Convention could include in their national legislation other grounds of discrimination as appropriate, after consultation with employers' and workers' organisations. 75 The seven grounds of discrimination included in the Convention no. 111 where the most relevant and disturbing ones in 1958 when the Convention was adopted, but this list is not exhaustive and other obvious grounds of discrimination appeared in the last 40 years. Including additional grounds of discrimination in national legislation is permitted. Therefore, any factors identified as impeding equality and which have nothing to do with job requirements or personal abilities should be prohibited through law. Some of the additional grounds referred in EU legislation and also at national level in EU Members States laws include: age, disability, family responsibilities, language, sexual orientation, pregnancy, parenthood, sexual identity, belief, physical or genetic characteristics, trade union opinion, gender reassignment and gender expression, property status, marital or family status, non-contagious chronic disease status, HIV-positive status and state of health. As mentioned in Chapter 5, some of these issues are addressed in national legislation, although some (such as gender reassignment and sexual identity) are not Race, colour, national extraction and social origin The common trait of these prohibited grounds of discrimination is the assumption that within a country different ethnic groups or communities could coexist. In the EU Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin does not define racial or ethnic origin. The ground national extraction included in the Convention is used to prohibit discrimination among nationals of the same country, not distinctions between nationals and foreigners. It covers 75 Article 1, Par. 1(b) of ILO Fundamental Convention no

92 discrimination against nationals with a foreign origin or communities with ties to different national cultures. In Republic of Korea, which has traditionally had a homogenous ethnic identity, there have historically been acts of discrimination by employers against hiring recruits from different regions, but in 2016 interviews for this study the respondents said they thought this was a thing of the past Sex Discrimination based on sex is acknowledged as one of the most common forms of distinction, especially in employment and occupation, and is often related to discrimination against women. Gender equality in pay and other aspects of the labour market is protected under Convention no. 111, but also under the Convention No. 100 concerning equal remuneration for men and women workers for work of equal value from In the EU the prohibition of discrimination based on sex is included in the Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) and it isn t limited to aspects of employment, also covering issues of social security. Also, Directive 2006/54/EC Recast provides in Article 14 some examples of practices that go against the principle of equal treatment and are prohibited, such as: conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty; and membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations. 92

93 In EU Member States discrimination on the grounds of sex covers also situations linked with maternity, pregnancy, sexual harassment, marital status and family situation and responsibilities. The ILO recognized the importance of issues related to marital status, family situation and responsibilities and addresses it through Convention no. 156 Workers with Family Responsibilities from 1981 and Recommendation No This Convention stipulates that both men and women must be enabled to access the labour market without being subject to discrimination because of their family responsibilities and, to the extent possible, without conflict between their employment and family responsibilities. As is discussed in Chapter 9, gender discrimination and sexual harassment continues in many countries including the Republic of Korea and EU Member States Political Opinion and Religion The grounds of political opinion and religion involve intellectual choices made by individuals and are related with the protection of the right to freedom of choice in the labour market. These grounds for discrimination are not directly referred in EU directives developed in 2000 to ensure equality and combat discrimination. Still, are covered in the Charter of Fundamental Rights of the European Union in Article 21 and in the many EU Members States is included directly in their national legislation or covered and protected under the ground of belief. To this end, various exceptions related to inherent requirements of the job are used in the EU legislation as noted above and in the EU Members States, but also in other countries that ratified Convention no Most of these exceptions are related with the freedom of religious bodies for which a certain faith represents an inherent requirement of the job. There has been a growth of concern about discrimination in the EU over the increased sensitivity to Islam, and ongoing cases at CJEU involve the banning by employers of any sign or symbol of religious belief Opinion delivered 26 May 2016 as advanced opinion on legal case. 48a5aa01a.e34KaxiLc3qMb40Rch0SaxuTahb0?text=&docid=179082&pageIndex=0&doclang=EN&mode=req &dir=&occ=first&part=1&cid=

94 The ground of political opinion raises challenges in fully protecting it against discrimination in the legislation of the EU Members States. It is the case, especially in some countries that were under communist regimes were laws in force still use this criteria for ensuring that those linked or in the oppression apparatus are impeded to access in certain positions in the civil administration or in the state security service. The fact that is a thin line in defining these exceptions and that certain EU Members States fail to fully respect the provisions of the ILO Convention no.111 on the ground of political opinion was pointed out several times by the CEACR Observation and Direct Requests and in individual cases and comments addressed by CAS at the International Labour Conference (ILC). Some preeminent examples include the Screening Act in Czech Republic, legislation enacted to make sure that persons actively engaged with the Communist regime before 1989 as members of the upper echelons of the Communist party or its repressive apparatus can t gain access to certain jobs and occupations in the public service. The exclusion imposed through this law was identified by the CEARCR and CAS as discrimination on the basis of political opinion under the terms of the Convention no These concerns were raised in the Individual case discussion at the ILC in 2015, 2010, 2008 and several times by CEACR in Observation addressed to the government since and latest in Although progress was registered during this period with the scope of the act reducing, it still fails to respect the terms of the Convention no Similar case was found in Lithuania where the Act on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organization of 16 July 1998 ( SSC Act ) which included in Section 2 the following provision For a period of ten years from the date of entry into force of this Act, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security Department, the police, the prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring the carrying of a weapon. This was also

95 identified by CEACR as contrary to the provision of the Convention no.111 and addressed in Direct Requests starting with Imposing restrictions to private sector occupation were identified by the European Court on Human Rights as a violation of the rights included in the European Human Right Convention article 14 (prohibition of discrimination) in the cases Sidabras and Džiautas v. Lithuania 80 and Rainys and Gasparavičius v. Lithuania 81. The provisions of this act phased out in Moreover in Romania the section where the former workers in the repressive apparatus (Securitatea) of the communist regime could not access jobs as civil servant under the Act No. 188/1999 on civil servants was identified by the CEARC as potentially discriminatory on the basis of political opinion 82. Still this provision wasn t identified as a violation of the European Human Right Convention in the decision adopter in the case Naidin v. Romania (application no /07): The Court took note of the decision of the Constitutional Court of Romania according to which the barring of former collaborators of the political police from public-service employment was justified by the loyalty expected from all civil servants towards the democratic regime. The Court reiterated that, as a matter of principle, States had a legitimate interest in regulating employment conditions in the public service. A democratic State had a legitimate interest in requiring civil servants to show loyalty to the constitutional principles on which the State was founded. 83 To this end such provisions could be seen admissible under the exemption of inherit requirements of the job included in Convention no.111. The advanced ruling of the advocat of May 2016 is one of the most significant rulings on discrimination, and worth studying. Republic of Korea s tradition culture has a syncretic attitude to religion and the population has almost equal numbers of Christians (primarily Catholics and Presbyterians) and of Buddhists with local religions, shamanistic cults and other practices vying for attention, alongside Confucians and Direct Requests of

96 atheists. Hearsay evidence of discrimination in hiring is common, mainly by employers who insist that their employees should attend their church. 84 No complaints are currently known. The Republic of Korea recently dealt with an issue relating to the dismissal of nine radical high school teachers in The teachers case is that they were dismissed while fighting corruption in private schools, teaching classes about Korean unification, or campaigning for a progressive candidate for the superintendent of education. 85 The reason they were dismissed is that because they committed actions which violates the obligation of political neutral. In addition, another reason they were dismissed is that the educational materials they used in class are praising the North Korea which is prohibited by the National Security Act. The project team understands that the teachers did not appeal against dismissal on the basis of ILO Convention no. 111, but the case nevertheless reached the ILO, over deregistration of the Korean Teachers Union. 86 Note that the UK was admonished by the ILO over the issue of Northern Ireland teachers Additional Grounds for Discrimination The commonly acknowledged additional ground of discrimination include: age, disability, sexual orientation, foreign nationality (migrant workers), but also trade union membership and trade union activities. 84 A recent example of this is the alleged requirement for senior employees of the companies under the management and ownership of Yu Byong-un to be members of the Evangelical Baptist Church and of requiring church members to work for the companies. Cults, money and tragedy have a history in Korea e/article.aspx?aid= (2013) 86 The Constitution of the Republic of Korea stipulates the political neutrality of education and teaching. And Framework Act on Education also prohibits teachers in elimentary, middle, high school from political action. The ILO was told that this includes attending any public demonstration. ILO Archives Fonds Korea c Direct Request The Committee recalls that the Fair Employment and Treatment (NI) Order, 1998, excludes teachers from the protection against discrimination on the ground of religious belief. The Committee notes the Government s indication that the Department of Education will respond to final proposals for this exemption under the Equality Bill and await the establishment of the Education and Skills Authority before undertaking any consultation on the future of the exemption. 96

97 The discrimination based on age was addressed in the Recommendation no. 162 on Older Workers adopted in 1980 which supplements the provision of ILO Convention no It applies to all workers which face difficulties in employment and occupation caused by their advancement in age and addresses the need to adjust working conditions. In the EU Directive 2000/78/EC in Article 3 Para 4 the EU Members States have the choice of not applying the ground of age and disability in the case of armed forces: Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces. Also, Article 6 of the same act includes some justification of using a different treatment on the ground of age: Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Some examples of situations where differences based on age could be used cover: establishing conditions to enter employment and vocational training, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their labour market and vocational integration and to ensure their protection; fixing minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; and fixing of a maximum age for recruitment or a reasonable period of employment before retirement. As for the prohibition of discrimination based on the ground of disability, this has the role of enhancing participation of people with reduce capacities into the labour market and in society at large. Additionally, persons with disabilities require special help in order to enjoy equality in employment and occupation through adaptation of working environments in order to accommodate their needs. The ground of disability was further covered in other ILO documents, namely Convention no. 159 from 1983 on the Vocational Rehabilitation and Employment (Disabled Persons) and Recommendation No

98 At EU level the protection against discrimination for people with disabilities is ensured through Directive 2000/78/EC. This also includes in Article 5 the need to provide: reasonable accommodation for disabled persons: [ ] This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. As explained in Chapter 5, the Republic of Korea has laws against most of these types of discrimination and these are, according to interviews with employer representatives, well respected. The Korean government has been an affirmative action employer of disabled people. 98

99 Multiple Discrimination In practice, some persons could be subject to discrimination based on more than one ground. Most of the time discrimination based on the ground of sex interacts with other forms of discrimination like disability or health, race, national extraction, social origin or religion, but also age and migrant status. The legal approaches which require that each ground is investigated and addressed separately and independently may prove insufficient for peoples discriminated on multiple grounds. Although in legislation various grounds of discrimination are defined and prohibited, few offer the possibility of filing complaints of discrimination on combined grounds. Therefore the challenge of covering multiple discrimination in legislation and practice remains and should be further investigated through studies and could be addressed in the amendments to laws developed to enhance equality and prohibit discrimination in the EU Member States and Republic of Korea Concepts of employment and occupation The Convention no. 111 defines in Article 1 par. 3 employment and occupation briefly as including access to vocational training, access to employment and to particular occupations, and conditions of employment. This is further detailed in Recommendation No. 111, Para 2 to cover the following situations: access to vocational guidance and placement services; access to training and employment of the worker's own choice on the basis of individual suitability for such training or employment; advancement in accordance with the worker's individual character, experience, ability and diligence; security of tenure of employment; remuneration for work of equal value; conditions of work, including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures, as well as social security measures and also facilities and benefits provided in connection with employment; and 99

100 in activities of vocational guidance, training and placement services under the control of the national authority. In the EU directives the situations protected include: conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals and pay; membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; social protection, including social security and healthcare; social advantages; education; and access to and supply of goods and services which are available to the public, including housing. The first four situations are covered both by Directive 2000/78/EC in Article 3 and by Directive 2000/43/EC also in Article 3. The remaining four situations are only included in Directive 2000/43/EC which combats discrimination on the grounds of racial or ethnic origin. The consultants are not aware of comparable legislation in the Republic of Korea. However, when detected, unfair admission to an educational establishment becomes a major issue and admission is conducted by exam or other means offering equal opportunity. The nature of Sunun, the university entrance exam, is continually being revised to ensure equal opportunity National policy on equality One of the most important obligations for countries that ratified the Fundamental Convention no. 111 is in Article 2, namely to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. 100

101 In order to define and design the national framework on equality and non-discrimination, the states that ratified Convention no. 111 should adopt relevant measures in line with the principles provided in Article 3: to seek the cooperation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy; to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy; to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy; to pursue the policy in respect of employment under the direct control of a national authority; and to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority. National policy on equality encompasses both the legislative provisions that translate into law the principles of Convention no. 111 and more specifically in EU Members States the principles included in Treaties, Charters and Directives adopted and also the administrative framework which includes specific measures and institutions developed with the role of addressing effectively the complex issue of equality and discrimination. Addressing multifaceted discrimination by adopting national strategies can play an important role in enhancing cooperation between stakeholders and in achieving specific goals and objectives in equality of opportunity and treatment. Still, in order to prove effective in enhancing equality and combating discrimination, national strategies should bring together various relevant stakeholders and include action in areas such as legislative reform, awareness raising, affirmative and proactive measures, and education and training. In the Republic of Korea, the establishment of the National Human Rights Commission of Korea (NHRCK) was generally seen as satisfying these conditions The recertification of NHRCK was delayed in 2015 over certain issues explained in the UN Special Raporteur of Freedom of Peaceful Assembly and Freedom of Association

102 6.7. Monitoring, assessment and enforcement Regular monitoring and assessment of legislative provisions plays an important role in identifying gaps, relevant issues that were not sufficiently covered and specific flaws that need to be addressed in future amendments to legislation. In addition, ongoing appraisal of the administrative procedures and measures designed to enhance equality and remove discrimination is essential for reinforcing their effectiveness and for building trust among people experiencing discrimination that help is available. Equally important is collecting and analysing statistics that aim to capture the impact of discriminatory practices. This information helps to measure the positive impact of policies implemented. Supporting data collection and research on equality and non-discrimination is an essential step towards improving outcomes in this area of interest Case Study - Main Challenges identified by ILO in EU Member States and Republic of Korea in terms of compliance with Convention no.111 Although one of the major objectives of the ILO Convention no. 111 is to define a common reference framework to promote equality of opportunities and treatment in employment and occupation for all states that ratify it, the scope of it goes beyond that. Convention no. 111 aims at eliminating all forms of discrimination that could arise in the labour market, by promoting the adoption of concrete legislative provisions and comprehensive equality policies at national level. Ratifying states of Convention no. 111 have the obligation 89 to regularly submit reports that include information about progress achieved, legislative changes, measures and actions designed to implement the national equality policy, in addition to statistics, studies and research conducted. These reports are analysed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and, along with information from other sources, represent the basis for Observations and Direct Requests addressed to specific issues identified in the reporting states. The Committee of Experts on the Application of Conventions and Recommendations is an independent body composed of 20 outstanding legal experts at the national and international 89 Under the Article 22 of the ILO Constitutions 102

103 levels, charged with examining the application of ILO Conventions and Recommendations by ILO Member States. The members of the Committee are appointed in their personal capacity from among impartial persons of competence and independent standing drawn from all regions of the world in order to enable the Committee to have at its disposal first-hand experience of different legal, economic and social systems. 90 The Observations are adopted and published by the ILO and include inquiries on the application of Conventions. The Direct Requests are communicated to governments and have a more technical approach, demanding that ratifying states deliver more in-depth information in their regular reports. These tools, along with the examinations of Individual Cases by the Committee on the Application of Standards (CAS) and the discussions in the International Labour Conferences, identify specific challenges faced and areas not covered sufficiently by existing legislative and administrative frameworks in countries that have ratified Convention no Based on the information from these sources available for consultation on ILO Normlex online system, the project team summarised the main challenges identified by ILO in EU Member States and in Korea (these summaries can be found in detail in Annex II below). The countries in the table below are grouped in general categories, but this should not be taken to imply that they face the same situation in each these categories

104 Table 6.1 Summary of common challenges identified by ILO Legislative Gender Equality and discrimination based on sex Migrants and minorities groups Persons with disabilities Institutional Austria; Cyprus; Czech Republic; Estonia; France; Ireland; Latvia; Lithuania; Luxembourg; Malta; Netherlands; Romania; Sweden; United Kingdom; Republic of Korea Belgium; Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Latvia; Lithuania; Luxembourg; Malta; Netherlands; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Sweden; United Kingdom; Republic of Korea Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Latvia; Lithuania; Netherlands; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Sweden; United Kingdom; Republic of Korea Austria; France; Germany; Ireland; Italy; Republic of Korea Croatia; Hungary; Slovakia Source: Developed by the project team based on ILO publicly available information. Delay in submitting the reports to ILO Bulgaria; Croatia; Czech Republic; Denmark; France; Ireland; Malta; Portugal; Slovenia; Sweden; United Kingdom The legislative challenge is the most difficult to overcome, as it refers to issues that are included in laws and other acts. In most countries, a long process of analysis and political consultation is required in order to reach the decision to change a specific legislative act. Also, the legislative challenges faced both by EU Member States and the Republic of Korea are very diverse, including cases where legislation infringes the provision of Convention no. 111 and cases where the legislation is not specific or explicit enough on one or more grounds 91 of Article 1 of the Convention. 91 In several countries social origin or political opinion are not explicitly included in legislation or the terms used to cover these grounds are not in line with ILO opinions. 104

105 In some EU Member States laws in force or that were phased out were identified by CEACR and CAS as contradictory to the principles included in Convention no.111 this points were addressed in section with cases from Czech Republic, Lithuania and Romania. It is also relevant in Austria where the ground of social origin is not specifically mentioned in the legislation but covered under the section 7(1) of the Constitution no privilege can arise from birth, status or class and in France where the similar ground is not included in the Labour Code. This gap in coverage was addressed by CEACR in the case of Austria in the Direct Requests issued in , , , and and in the case of France in the Direct Requests of In Ireland CEACR identified and addressed with the Observation of and repeated in that the grounds of political opinion and social origin are not include and protected under the Employment Equality Act and this issue needs to be addressed in further amendments planned for the Act. The gender equality and discrimination based on sex challenge covers multiple facets of the complicated task of ensuring women and men are treated equally in the labour market. The main specific issues included under this heading and identified in several Observations and Direct Requests addressed to governments from all EU Member States but also to the government Republic of Korea are: Persistent differences in participation into the labour market, with women having lower employment rates, higher incidence of part-time work; Vertical (the glass ceiling effect) and horizontal occupational segregation in the labour market; Deeply rooted gender-based stereotypes that lead to gender-based exclusion; Gender pay gap;

106 Issues involving access to or termination of employment on the grounds of pregnancy or maternity leave; Sexual harassment. On issues linked with equality between women and men all EU Member States received from CEACR mainly Direct Requests for additional information regarding specific situations and challenges identified. Some of the points raised include situations identified in Belgium 100 (discrimination at work faced by pregnant workers; Act prohibiting the wearing of any clothing that entirely or largely conceals the face which is challenging for Muslim women; increasing t the number of complaints concerning sexual harassment); Cyprus 101 (cases of sexual harassment at work, including against domestic workers); Czech Republic 102 (employment rate of women remains low and the labour market remains significantly segregated by gender); Denmark 103 (high number of cases relating to dismissal on the ground of pregnancy or maternity leave); Estonia 104 (gender segregation of the labour market and the impact of measures adopted to combat the phenomena); Finland 105 (occupational gender segregation); France 106 (persistence of inequality in employment and occupation). The migrant and minorities groups challenge deals mostly with issues faced by people with a migrant background (either first or second generations) and specific minority groups that can be found in the EU Members States. 100 Direct Request of Direct Request Direct Request Direct Request Direct Request Direct Request Direct Request of

107 To this end, CEACR comments reveal gaps and challenging situations in countries like: Germany 107 (Islamic communities reported the highest levels of discrimination), Croatia 108 (access of minorities to employment under the control of a national authority), Cyprus 109 (situation of Turkish Cypriots and members of national minorities, especially Roma and Pontian Greeks), Greece 110 (stereotypes and prejudices against the Roma, migrant workers and the Muslim minority), Italy 111 (persons of African and Asian origin, ethnic minorities and especially women belonging to these categories returning to work), Spain 112 (situation of migrants and Roma), Sweden 113 (situation of Roma, Sami, Swedish Finn and Tornedaler persons) This also includes the Roma challenge 114, relating to the largest ethnic minority in the EU, which still encounters difficulties in accessing the labour market and mainstream educational system and suffers from prejudice and social exclusion. The persons with disabilities challenge covers mainly the issues of finding an adequate workplace for persons that try to overcome their disabilities and integrate into the labour market and also the high number of complaints raised to national institution. 107 Direct Request of Observations of 2016, 2013, 2012, 2011 and Direct Request of Direct Request Observation Observation Direct Request of See CEACR Observation and Direct Requests issued between 2010 and 2016 to Bulgaria, Czech Republic, Croatia, Greece, France, Hungary, Italy, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain. 107

108 Main comments of CEACR committee touches on issues such as Austria 115 (legislative developments regarding the prohibition of discrimination on the grounds of disability); France 116 (education and vocational training of persons and children s with disabilities); Germany 117 (persons with disabilities continue to face significant challenges regarding access to the job market); Ireland 118 (low labour market participation for people with physical or emotional/psychological disability and high level of work related discrimination experienced by people with an intellectual/learning disability); Italy (31 per cent of complaints received by the Equality body refer to discrimination based on disability 119 ; Act No. 183/2010 prohibiting direct and indirect discrimination doesn t include the ground of disability 120 ). The institutional challenge touches on both the role (mandate and tools available) of institutions that could be strengthen to better support the fight against discrimination and the institutional capacity (financial and human resources) to raise awareness about legislative provisions or to assist victims of discrimination. Request for additional clarification were raised by CEACR in the case of Croatia 121 (indirect jurisdiction of the labour inspectorate over cases of discrimination); Hungary 122 (the equal treatment authority should receive sufficient means and its capacity adequately strengthened to address effectively discrimination in the field of employment and occupation, and to provide adequate access to the complaints mechanism, assistance and protection of workers who are 115 Direct Request Direct Request Direct Request Direct Request Direct Request Direct Request Direct Request Direct Request

109 victims of discrimination); Slovakia 123 (specialized bodies should have the necessary means and resources to secure observance of national equality and non-discrimination policy in employment and occupation). The delay in submitting the reports to ILO challenge is the one that can be most easily overcome by the states, through better coordination at national level and stronger commitment towards the appraisal system developed by the ILO. 123 Direct Request

110 7. Institutional governance ecosystem equality bodies, labour inspectorates, social partners, courts and tribunals Equality bodies, labour inspectorates, courts and tribunals, social partners and other civil society stakeholders are component parts of the institutional governance ecosystem that should ensure equality, and combat and punish discriminatory practices from a governance point of view. As noted, all EU Member States and the Republic of Korea have a similar institutional ecosystem which has evolved within their differing societies. Public authorities contribution to the development and enforcement of legislative provisions is substantial. Labour inspectorates, equality bodies, and courts and tribunals all enhance equality, and combat and punish discriminatory practices in the labour market and society. Most of the non-judicial stakeholders play a major role in preventing discrimination from happening through actions developed to raise awareness about legislative provisions and rights. When the prevention mechanism fails to achieve the desired outcomes, their ability to investigate and support substantiated complaints about discriminatory practices before courts and tribunals is used Equality bodies In most EU Member States the first line of defence in ensuring equality and combating discrimination in employment and occupation is represented by the equality bodies. These are competent authorities established through legislation that promote and protect equality. In the Republic of Korea, the National Human Rights Commission of Korea (NHRCK) can be seen as the second line of defence for non-unionised employees experiencing discrimination, who would probably regard the local Labour Office as their first line, since the Labour Offices have the power to order restoration and are generally are seen as favourable to individual employees. All EU Members States and the Republic of Korea have established equality bodies with diverse roles, but with the common aim of promoting equality and combating discrimination in relation to the grounds covered by national law. The Case Studies included at the end of this chapter present the tasks and features of equality bodies in some of the EU Member States and the Republic of 110

111 Korea. Also, where available, the procedure for filing a complaint and the support received from these institutions is presented. At EU level the mandate for developing such institutions is included in Article 20 of Recast Directive 2006/54/EC and Article 13 of Racial Equality Directive 2000/43/EC which present also some of the competences these bodies should receive. Article 13 of Racial Equality Directive 2000/43/EC 1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights. 2. Member States shall ensure that the competences of these bodies include: without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination. Equality bodies: Article 20 of Recast Directive 2006/54/EC 1. Member States shall designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on grounds of sex. These bodies may form part of agencies with responsibility at national level for the defence of human rights or the safeguard of individuals' rights. 2. Member States shall ensure that the competences of these bodies include: without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 17(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination; conducting independent surveys concerning discrimination; publishing independent reports and making recommendations on any issue relating to such discrimination; at the appropriate level exchanging available information with corresponding European bodies such as any future European Institute for Gender Equality. 111

112 As a result, all EU Members States have set up one or multiple equality bodies which legally promote equality and combat discrimination in relation to one, some, or all of the grounds of discrimination covered by national and EU law. The mandate and role of these institutions varies greatly in the EU Members States, but some of the common actions accomplished include: assist victims of discrimination; promote equal treatment and conduct awareness campaigns; perform independent analysis on themes of interest; publish reports and issue recommendations; and carry out quasi-judicial roles and issue binding decisions. Some of the more compelling roles and responsibilities of equality bodies in the EU Member states include: issuing binding decisions; applying sanctions (that should be effective, proportionate and dissuasive 124 ); levying fines to those who fail to provide the information and documents requested, or infringe recommendations or binding decisions; and awarding compensation 125 with a dissuasive character. Nevertheless, the issue of fines and compensation is not a major priority, nor one of the primary roles of equality bodies in the EU Member States. The focus is more on achieving soft solutions and settlements between the parties since they represent an out-of-court alternative for individuals who were victims of discriminatory practices or behaviours. Their mandate of solving complains and reaching agreements outside judicial proceedings explain the differences between the number of complaints investigated by equality bodies and limited number of cases brought to courts. In order to maintain high quality standards for these institutions it is very important to ensure trust in their effectiveness, develop procedures that are simple but comprehensive when investigating cases and limit as much as possible the cost for peoples that want to file a complaint. 124 Article 15 of Racial Equality Directive 2000/43/EC, Article 17 of Employment Equality Directive and Article 25 of Recast Directive 2006/54/EC 125 E.g. Chancellor of Justice in Estonia; The Equality Tribunal in Ireland 112

113 Also, at wider European level it is worth nothing the important role of the European Network of Equality Bodies (Equinet) 126, which supports equality bodies to be independent and effective through information, knowledge and experiences exchanges, mutual learning and cooperation activities. This network brings together 46 organizations from 34 European countries, covering a diverse range of discrimination grounds Labour inspectorates When it comes to early intervention and detection of discriminatory practices the Labour Inspectorates have a crucial contribution. Although their mandate is diverse across countries, their role in enforcing labour relation legislation is preeminent. This could include combating discrimination and ensuring equality in work and remuneration. In the EU Member States the legal mandate of labour inspectorates are very diverse, but in most of the cases cover topics such as: occupational safety and health, welfare, working time and wages, social dialogue, labour relations and illegal employment, but also discrimination issues, child labour and forced labour. The Labour Inspectorates enforce and ensure compliance with the legal provisions included in the Labour Codes and other relevant pieces of legislation that govern employment relations, including those related to combating discrimination and ensuring equality and equal remuneration. On an individual basis, this can be further enhanced through increased interaction and cooperation with equality bodies, social partners and other relevant stakeholders. Ensuring equality and combating discrimination are important themes that need to be included as priority areas in regular targeted inspection plans and campaigns. In order to overcome difficulties faced by many labour inspectors in identifying cases of discrimination, some EU Member States have enhanced access to professional training programmes. These training initiatives aim to increase the capacity of inspectors to prevent, detect and remedy cases of non-compliance with the equality and anti-discrimination legislation. Adequate resources both human and material are needed to secure positive results from labour inspectors in combating discrimination in employment, occupation and equal remuneration. 126 More details about Equinet are available at: 113

114 Since the results, involvement and impact of Labour Inspectorates in equality and nondiscrimination varies greatly in EU Member State being influenced mainly by the mandates/ responsibilities set in legislation and by their administrative capacity additional input from other institutions may be required, particularly to fulfil requirements of ILO Convention no.111 such as access to vocational education and training. As noted earlier the Labour Inspectors in Korea are generally well regarded as doing an effective job, but the number of establishments they can inspect in a single year is a small proportion of the total Social partners and relevant stakeholders Developing a truly comprehensive and effective equality and non-discrimination national framework relies heavily on the active involvement of social partners and civil society. To this end, the important role of the social partners and other stakeholders is emphasized in Article of the ILO Convention no. 111 and in the EU directives that specify that: Member States shall, in accordance with national traditions and practice, take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices 128 ; and for: Member States shall encourage dialogue with appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of [racial and ethnic origin, religion or belief, disability, age or sexual orientation] with a view to promoting the principle of equal treatment Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice-- (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy; [ ] 128 Article 11 of Racial Equality Directive, Article 13 of Employment Equality Directive and Article 21 of the Recast Directive 2006/54/EC 129 Idem Article 12, Article 14 and Article

115 However, few Member States have managed to develop adequate platforms for cooperation with the social partners and relevant stakeholders that exclusively deal with equality and discrimination issues. The differences in the approaches taken by the EU Member States is attributed to vagueness of the provisions, and to the way governments interpret them (not seen as mandatory features that should be transposed into law, but more as a general scope and objective that should be achieved through different administrative measures). 130 Pan-European research 131 has showcased both the diverse practices and the roles played by social partners and relevant stakeholders in equality and discrimination. Some examples include: developing and contributing to specific advisory bodies of the government (Slovakia, the Council of the Government of the Slovak Republic for Human Rights, National Minorities and Gender Equality 132 ); promoting cooperation at ministerial and /or agency level (Belgium, cellule enterprise multicultural 133 ); acting as contact points at regional level for national institutions (Croatia, cooperation agreement between the Ombudsman s Office and independent NGOs); initiating legal action, providing assistance in individual court cases (Belgium, Finland, Greece, Hungary, Poland, Sweden); stimulating and contributing to national and European discussions on specific equality and discrimination themes (Netherlands, Sweden 134 ); and 130 EC, DG Justice and Consumers, A comparative analysis of non-discrimination law in Europe2015, prepared by Isabelle Chopin and Catharina Germaine for the European network of legal experts in gender equality and non-discrimination, Luxembourg: Publications Office of the European Union, Idem and in EC, DG Justice and Consumers, Gender equality law in Europe, How are EU rules transposed into national law in 2015?, Prepared by Alexandra Timmer and Linda Senden for the European network of legal experts in gender equality and non-discrimination, Luxembourg: Publications Office of the European Union, National Strategy For Gender Equality in the Slovak Republic , available at: The Swedish Trade Union Confederation (LO), 115

116 conducting awareness campaigns regarding discrimination and barriers encountered by specific groups (Austria young people and females; Italy immigrants and sexual minorities; Lithuania older workers) 135 etc. In Korea both union federations gave and continue to give assistance to migrant workers who are not aware of their rights. Cases brought to the courts by individual unions in Korea have allowed major clarifications of labour standards, notably with regard to the definition of ordinary wages." The need to strengthen the cooperation between governments and social partners is of utmost importance in the context of Convention no.111 and this is also addressed in CEACR Direct Requests issued and/or in CAS comments. Some relevant examples could be found in: Belgium CEACR acknowledges the active role of social partners of promoting equality and non-discrimination, especially in collective agreements in force that have clauses aimed at combating discrimination and promoting diversity; 136 Croatia CEACR support the legislative provisions Anti-Discrimination Act provides for consultation by the Ombudsman with the social partners when preparing regular reports and issuing opinions and recommendations and requests additional information on how this provision is implemented; 137 Denmark CEACR points out the need to involve the social partners in developing further action to prevent and eliminate discrimination on grounds of pregnancy and maternity leave; 138 France CEACR acknowledges the good cooperation between the Government and social partners in addressing inequalities between men and women and the resources allocated to this purpose; 139 \ 135 European Commission, DG for Employment, Social Affairs and Inclusion, Trade union practices on antidiscrimination and diversity, Report prepared by Working Lives Research Institute and London Metropolitan University, Luxembourg: Publications Office of the European Union, Direct Request Direct Request 2016 (repetition of Direct Request issued in 2015 and 2012) Direct Request Direct Request

117 Germany CEACR identifies the projects( Girls Day, New paths for boys and Come and work in MINT jobs initiatives, Equal Pay Day, Logib-D tool) and positive outcomes of cooperation with the social partners; 140 Netherlands CEACR calls for additional cooperation between Anti-Discrimination Services and the social partners in addressing discrimination in the workplace; 141 Slovakia CAS and CEACR encouraged the work with the social partners to develop a positive action to achieve both formal and substantial equality for Roma and women; Courts and tribunals In order to enforce legal provisions in terms of equality and non-discrimination, complaints are typically brought to court or to a labour tribunal. Judicial proceedings (civil, criminal, labour and/or administrative) could provide appropriate remedies and impose sanctions, when violations are proven. Furthermore, decisions by courts and tribunals enhance and develop jurisprudence consolidating the principles covered in Convention no. 111, as well as EU legislation and national legislation. The law courts have not tended to make huge contributions through their decisions to reshape a nation s laws on matters of discrimination. 143 However, the CJEU made an important contribution concerning employment and pregnancy, and the Korean courts have made two major decisions, one that positive discrimination in employment in favour of army veterans was contrary to nondiscrimination against the sexes (as in Republic of Korea soldiers are overwhelmingly male) and another ruling in favour of a Migrants Trade Union. Details of all of these cases can be found in Chapters 8 and Direct Request Direct Request Individual Case discussion ILC 2006, Direct Request 2014 and 2011 available at: A review of landmark cases at the ECtHR and CJEU shows most human rights cases have been non-work related 117

118 7.5. Case study AUSTRIA Equal Treatment Commission 144 The Austrian Equal Treatment Commission consists of three Senates and was established to examine violation relating to equality and discrimination under the Equal Treatment Act. It is a special institution designed to support labour, social and civil courts. The tasks performed include: respond to questions of general or individual nature in relation to equality and discrimination; provide a forum for mediation between employers and employees prior to the initiation of court proceedings; issue advisory opinions or to settle disputes before or even during proceedings. Equality and anti-discrimination issues in line with the provisions of the ILO Fundamental Convention no. 111 are dealt by the First and Second Senate. The Equal Treatment Commission role is to facilitate arrangements that will avoid judicial proceedings or to settle legal disputes. An important aspect is that it covers also multiple discrimination cases. Senate I of the Equal Treatment Commission has a Chair and six members appointed by the Federal Chamber of Labour, the Austrian Trade Union Federation, the Austrian Federal Economic Chamber, the Federation of Austrian Industrialists, the Federal Chancellor and the Federal Minister of Labour, Social Affairs and Consumer Protection. Senate I task is to ensure the equal treatment between women and men in employment and occupation, including discrimination cases that could occur on grounds of marital or family status. Specific areas covered in employment and occupations are: the establishment of the employment contract, fixing rates of pay, granting bonuses not counted as remuneration, initial and continued vocational training and re-training, career advancement, in particular promotions, working 144 Source of information and more details about the Equal Treatment Commission available at: 118

119 conditions, termination of employment, career guidance, vocational training, advanced professional training and re-training not covered by the employment contract, membership and active involvement in the activities of organisations representing employer or employee interests or of organisations whose members belong to a specific occupational group. Senate II of the Equal Treatment Commission has a similar format to Senate I and with representatives from the same institutions and social partners. It has the mission to ensure equal treatment in employment and occupation on the grounds of ethnic origin, religion or belief, age or sexual orientation. The areas of employment and occupations covered by the Senate II are similar with the ones of Senate I. Senate III of the Equal Treatment Commission has a similar organisational format but gathers around representatives from other institution and social partners given that the role is to cover equal treatment irrespective of ethnic origin in other areas: social protection including social security coverage and healthcare, social benefits, education, access to and supply of public goods and services including housing, on condition that they come within the direct legal authority of the federal state Ombuds system for Equal Treatment 145 The Ombuds for Equal Treatment is a governmental institution with the mandate to enforce and protect person s right to equal treatment and non-discrimination in employment and occupations. The grounds of discrimination in employment and occupation covered are: sex, ethnicity, religion or belief, age and sexual orientation, it investigates also harassment and sexual harassment complaints. The Ombuds of Equal Treatment provides personal consultations, information, advice, assistance and support free of charge and confidential. It has the mandate to represent victims and provide ongoing support in negotiations in the preliminaries of-court proceedings or proceedings before 145 Source of information and more details about the Ombuds for Equal Treatment available at: 119

120 the Equal Treatment Commission and to initiate proceedings before the Equal Treatment Commission and provide support throughout. The three Parts of the Ombuds of Equal Treatment reflect the three Senates of the Equal Treatment Commission. The Ombud Part 1 deals with equal treatment and equality between women and men in employment and occupation and provide advice to persons feeling discriminated on the ground of sex: during negotiations with employer, regarding the optimal use of legal remedies, and ongoing support and assistance in submitting complaints to the Equal Treatment Commission. The Ombud Part 2 deals with equal treatment and discrimination on the grounds of ethnicity, religion or belief, age or sexual orientation in employment and occupation. The ombuds provide information, advice and support in cases of discrimination or harassment in areas like: vocational training and career counselling, establishing and terminating employment contracts, pay, fringe benefits, in-service training, promotion, other working conditions, membership in an employee or employer organisation. The Ombud Part 2 tasks include: providing advice, information and support to victims; obtaining comments and information from both sides of the dispute; negotiating out-of-court settlement; initiating proceedings before the Equal Treatment Commission on request; preparing comments and recommendations on specific equal treatment issues; providing information and exchange of experience nationally and internationally in the various formats. The Ombud Part 3 covers equal treatment irrespective of sex or ethnicity in other areas, such as: access to schools, training allowances; access to health, pension and accident insurance as well as the benefits granted under these schemes (unemployment benefit, unemployment assistance, maternity allowance, sickness benefit, childcare allowance, family allowance); housing allowance, exemption from prescription fees for medication, reduced fares on public transport. 120

121 Figure 7.1: Advisory process of the Ombuds for Equal Treatment in Austria Source: 121

122 7.6. Case Study BELGIUM Interfederal Centre for Equal Opportunities (Unia) 146 Belgium s equality body with the largest mandate in equal treatment and non-discrimination is the Interfederal Centre for Equal Opportunities (Unia) an independent public institution set up based on the partnership agreement between the federal government, the regions and the communities. The main areas of Unia s mandate cover: promoting equal opportunities and participation for all, in employment, housing, education, welfare, leisure, culture, citizenship, etc.; cooperating with relevant stakeholders (political and public authorities, citizens, civil society, professions, social partners, academic world, international organisations, and others) in order to achieve equality and combat discrimination; building awareness and ensure respect and enforcement of constitutional rights, antidiscrimination law provisions throughout the country. The Interfederal Centre for Equal Opportunities and the Federal Migration Centre (Myria) continue the work of the former Centre for Equal Opportunities and Anti-racism the equality body that was in place in Belgium before the 2013 agreement between federal government, regions and communities. The Federal Migration Centre role is to safeguard the constitutional rights of immigrants, to inform the authorities about the type and extent of migrations and to help combat human trafficking. The Interfederal Centre for Equal Opportunities protect the following grounds of equality and nondiscrimination: five 'racial' criteria (presumed race, skin colour, nationality, ancestry (Jewish origin) and national or ethnic origin); disability; philosophical or religious beliefs; sexual orientation; age; wealth; civil status; political beliefs; trade union membership; state of health; physical of genetic characteristics; birth; and social background. 146 Source of information and more details about the work of the Interfederal Centre for Equal Opportunities (Unia) are available at: 122

123 Unia covers direct and indirect discrimination in employment (recruitment, labour relations and termination of labour contract), harassment or intimidation and refusal to implement reasonable accommodations for persons with disabilities. The main tasks performed include: advising and supporting persons; informing the parties in a complaint about their rights and duties; supporting the parties in reaching a constructive, out of court settlement; organising campaigns to inform and raise awareness about discrimination; informing employers on anti-discrimination legislation (especially through an online training platform), reasonable accommodations for persons with disabilities, methods of managing religious diversity, and other equality and non-discrimination issues; developing reports and studies and support gathering of information and statistics on various grounds of discrimination; releasing recommendations on ways to improve and align the legislation to European and international developments in equality and non-discrimination; gathering and disseminating court decisions useful in evaluating the anti-racism and antidiscrimination legislation; consulting with relevant stakeholders on ways to increase protection against discriminatory practices The Institute for the Equality of Women and Men 147 The Institute for the Equality for Women and Men of Belgium was created in 2002 and its role is to guarantee and promote the equality of women and men and to fight against any form of discrimination and inequality based on gender in all aspects of life. 147 Source of information and more details on the Institute for the Equality for Women and Men are available at: 123

124 The Institute works at designing and promoting the development of an adequate legal framework, coupled with appropriate administrative structures, strategies, instruments and actions that will ensure equality between women and men. Therefore it protects through its work the ground of gender and issues of equality between women and men and gender-based discrimination (including transsexual persons). The main tasks performed by the Institute for the Equality for Women and Men include: develop, support and coordinate studies and research on gender equality and assess the impact of policies, programmes and measures in terms of gender issues; formulate recommendations and provide information, documents, statistics and other types of support to enhance gender equality in relevant laws and regulations; address recommendations to stakeholders based on the findings of the studies and research activities conducted or supported; cooperate with stakeholders working in the field of equality between women and men; assist peoples on issues linked with practices that contravene to the principle of equality between women and men and provide information and advice on possible ways to enforced their rights; take legal action in the case of disputes resulting from the application of criminal and other laws, specifically aimed at guaranteeing the equality of women and men; cooperate with relevant authorities in gathering information and conduct analysis on specific discriminatory practices and in cases brought to its attention. 124

125 7.7. Case Study CZECH REPUBLIC The Public Defender of Rights 148 The Czech Republic equality body is the Public Defender of Rights which performs multiple roles including: protects people against the proceeding of authorities and other institutions if those are against the law, the principles of a democratic state and the principles of good administration. It also deals with situation when institutions of the state are inactive to citizens complaints; carries out preventive visits to places identified as locations where people freedoms are restricted and ensure that their rights are protected and respected; contributes to promotion of the right to equal treatment and protection against discrimination. As an equality body the Public Defender of Rights mandate is to informs, educate and assist persons that were victims of discrimination or discriminatory practices. Some of the tasks performed in line with its competencies include: issues recommendations for general public on discriminatory practices and on ways to prevent such behaviours or situations; publish statements for experts in equality area regarding legal procedures and judicial decisions; carry out research in the area of equal treatment and discrimination; design and implements educational activities: thematic seminars, workshops and trainings intended for non-profit organisations, state administration, employees and providers of services; addresses case referred from the legal point of view, determines whether discrimination occurred according to its investigation and makes suggestions on possible further actions. 148 Source: 125

126 provides assistance to victims in commencing proceedings before the court in cases concerning discrimination. The Public Defender of Rights assists victims of discrimination by legally evaluating the situation and providing options for further actions. Figure 7.2: Complaint procedure of the Public Defender of Rights in Czech Republic The grounds of discrimination protected are: sex, race, ethnic origin, sexual orientation, age, disability, religion, belief or other conviction and nationality Source of information and more details available at: 126

127 7.8. Case Study SWEDEN The Equality Ombudsman 150 The Swedish Equality Ombudsman ensures compliance with the Discrimination Act in employment and occupation on the following grounds: sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age. The Equality Ombudsman provides advice and support to all persons who were victims of discrimination and has the mandate to perform tasks such as: informs, educates, discusses and cooperates with stakeholders in equality and nondiscrimination, namely government agencies, enterprises, individuals and other organisations; follows international developments and cooperates with international organisations active in the equality and discrimination area; conducts research on specific discrimination issues; proposes legislative amendments or other anti-discrimination measures that would ensure a better protection of persons against discrimination; initiates proceedings and other appropriate measures. The Equality Ombudsman ensures the prohibition of discrimination in areas such as: all aspects related to employment and occupation: recruitment, access to employment, promotion, bonuses and other payments, termination of labour relations and differences in payment when performing the same work or work of equal value; labour market policy activities (access to government run programmes, to employment services delivered by private or public providers); membership of certain organisations (employer or trade union); business start-up or seeking formal recognition as a professional (access to government grants for business start-ups or to procedures for issuing a professional authorisation); access to unemployment insurance. 150 Source of information and more details available at: 127

128 Administrative steps in making a complaint to the Equality Ombudsman Complaints must be filed in writing giving details such as: name, address, telephone number, address and the name of the body responsible and description of the discriminatory practice or reason for discrimination. Punishment for reporting a discriminatory practice is forbidden and should be reported to the Equality Ombudsman. Also, the violations of the equal treatment right should be reported swiftly in order to avoid the expiration of the right to legal action. Events that occurred more than two years earlier are not usually investigated. In investigation of complaints the Ombudsman adopts a neutral view, collecting information from both parties. If the investigations prove the discrimination or the unfair treatment the Ombudsman first tries to negotiate a voluntary agreement (e.g. involving a pay rise, an apology, financial compensation or training measures) and failure to reach an agreement the Equality Ombudsman can take the case to the Labour Court. One of the sensitive aspects is represented by the fact that complaints are registered and become public documents that both the general public and the media have access to. The Equality Ombudsman is only allowed to classify data as secret under special circumstances. 128

129 7.9. Case Study THE REPUBLIC OF KOREA National Human Rights Commission of Korea The role of equality body in Korea is taken by the National Human Rights Commission of Korea (NHRCK). The relationship between the NHRCK and the government has varied from administration to administration, but during the first six years of its existence, while creating the 2006 Human Rights National Action Plan (NAP), the NHRCK and the Government agreed on a division of labour with regard to human rights issues. In accordance with the agreement, the NHRCK serves as the advisory body to the government during the development and implementation of the NAP. It makes prioritised policy recommendations for the NAP and provides advice for its successful development and implementation. 151 The Government is responsible for development and implementation of the plan, based on these recommendations. During the drafting of the first NAP ( ), it was agreed that any human rights issue not included in the first NAP would be included in the second NAP ( ). The National Human Rights Commission of Korea adopted the Action Plans for the Promotion and Protection of Human Rights which focus on: cultivating a culture of human rights; constructing an institutional framework of human rights protection; and strengthening its capacity to provide an effective remedy for victims of human rights violations. The NHRCK sets forth strategic objectives to achieve these goals, along with special projects on North Korean human rights, ICT and human rights, and business and human rights. The five strategic objectives are: Ensuring and strengthening a legal and administrative system for the protection of fundamental rights Expanding the human rights protection for socially vulnerable groups Improving the effectiveness of its investigations and remedies

130 Spreading a culture of human rights through human rights education Eliminating discrimination 152 The complaints procedure is set out in the following diagram. Complaints may be made by any individual or third party and discrimination against a complainant is strictly prohibited. Some concern was expressed about the number of cases which were dismissed without consideration. The Special Rapporteur noted that in the view of social partners, the NHRCK under its previous leadership was slow to react and reluctant to issue decisions or statements on urgent and politically sensitive cases of violations of human rights; lacked visibility when significant issues of human rights come to the fore; and failed to make timely decisions on complaints before it. For example, the Special Rapporteur was informed that 20 cases arising from the Sewol Ferry disaster filed with the NHRCK after the tragedy in April 2014 had not been decided a year later. Five of the cases were subsequently dismissed but the complainants were not notified of this. He noted that the new leadership was anxious to rectify these issues. 153 Figure 7.3: Complaint Handling Process, Korea

131 Labour Inspectors Republic of Korea signed the Convention no. 81 on labour inspectors in Republic of Korea labour inspectorate operates through the headquarters and 47 district labour offices. The Korean government employs approximately 1,100 labour inspectors. The majority (78 percent) specialize in labour standards while the remaining inspectors focus on occupational health and safety. Their activities are under the purview of the district labour offices. They are administratively managed by the Labour Standards Policy Bureau or the OSH Bureau of the National Labour Relations Policy Office, depending on their specialty. Labour inspectors are responsible both for responding to allegations of labour law violations brought to district labour offices by workers and employers and for conducting regular inspections to monitor labour law implementation. They have the authority to investigate, to detain and arrest employers suspected of violating labour laws, and to order fines, other penalties, and remedies where violations have been found. While inspectors are required to provide ten-day notice to employers prior to conducting regular inspections, no such notice is required for special inspections conducted in response to information received regarding working conditions or potential violations. Where the corrective actions or remedies ordered by the inspectorate are not implemented within a specified period or where a penalty is not paid, the inspectorate is required to refer the case to prosecutors. In a typical year, the Labour Inspectors handle 300,000 complaints made by workers (and employers) regarding the law and expect to settle about 80%. Inspections may cover up to 25,000 of the 4.1 million work places in Republic of Korea in one year Labour Relations Commissions In addition to filing complaints with the labour inspectorate, workers and employers may bring allegations of labour violations and labour disputes before quasi-judicial administrative bodies called Labor Relations Commissions (LRC), which serve as the principal entities for adjudication and mediation of labour-related issues in Republic of Korea. The main responsibilities of the LRCs include: mediating or arbitrating labour disputes and providing support for interested parties to autonomously settle their disputes in accordance with the law. The LRCs consist of the following: 131

132 Regional LRCs, which report to the relevant ministry; a Special LRC, which handles special cases prescribed by specific labour laws. The LRCs are comprised of an equal number of worker representatives ( employee members ), employer representatives ( employer members ), and members representing the public interest ( public interest members ), who must meet specific qualifications with regard to expertise and experience, as stipulated in the Labor Relations Commission Act. Their responsibilities include: investigating allegations of violations of labour laws; judging, deciding, making resolutions, and ordering redress of labour violations. These are commonly used for wage bargaining disputes and collective bargaining agreements disputes. 132

133 8. Classic non-gender-related discrimination in EU Members States and Republic of Korea 8.1. Overview This chapter aims at presenting some of the main challenges faced by the EU Member States and the Republic of Korea in terms of equality and discrimination in employment and occupation in matters not relating to gender (which are covered in Chapter 9), nor workplace issues relating to regular and non-regular employees (which are covered in Chapter 10). The analysis in the next three chapters along with the issues identified in the previous chapters serve as a base for the policy implication and suggestion chapter and for emphasizing particular good outcomes found in the countries analysed. After the ratification of the International Labour Organisation Convention no. 111, the European Union Member States and the Republic of Korea have adopted numerous laws and developed various policies and administrative structures and procedures to achieve equality and to combat discrimination in employment as examined above. Still, the Direct Requests and Observations adopted and published regularly by the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the examination of Individual Cases by the Committee on the Application of Standards (CAS) and discussions at the International Labour Conferences point out specific challenges faced and areas not covered sufficiently by the legislative and administrative framework. These recurrent issues, addressed by ILO Committees to EU Members States and the Republic of Korea, are further summarized in Annex II. Some of the common challenges identified by the ILO Committees relevant for both the EU Member States and Republic of Korea include: a range of issues related to hiring practices, the problems of migrant workers, work for the aged, and disability. Sexual orientation has emerged as an issue in recent years, both in terms of removing social stigma and recognition of single sex marriages as deserving of family benefits related to work from both company and state. For many EU Member States a common challenge emphasized in CEACR Direct Requests and Observations and by other institutions (Council of Europe, European Union Agency s for Fundamental Rights, European Commission) reports is the situation of the Roma population, an issue relevant under the race, colour and national extraction grounds of discrimination of the ILO Convention no

134 As in the previous chapter, the analysis is developed on a legislative, statistical (when available) and relevant court cases approach. It includes, for each ground of discrimination analysed, information about the relevant legal framework at EU level and about particularities of legislation found in the EU Member States. The chapter present statistical information and data about participation in the labour market, specifically employment and unemployment rates computed at national level, for the particular groups analysed, when these data were available and comparable. As in the previous chapters, for specific grounds of discrimination the chapter presents the judgements in relevant cases given by the Court of Justice of the European Union or the European Court of Human Rights which further clarified the legislative provisions available at EU level, or in specific Member States and in the Korean law courts. The chapter also contains case studies regarding integration of the Roma population into EU Member States, issues around migrants, and concomitant multinational family issues, age issues and disability employment. Not dealt with in this chapter is the question of whether self-employment creates discrimination in social welfare and in general life such as access to loans, and whether this is a matter for redress Discrimination of foreigners in employment and occupations - Case of migrant workers Migrants workers in the EU Within the EU, migrant workers may originate from other Member States, or from third countries (countries outside the EU). The right to work in the EU allows all EU citizens to freely take work in 154 This area is partially dealt with in section 2.4 (and sources quoted in footnotes) of the 2016 Report on Indirect Employment but not from the perspective of convention pdf 134

135 other Member States 155. This may lead to discrimination against newcomers, and to political movements which seek to limit this freedom of movement, as has been notable in the UK. Some of the general factors which intensify discrimination among many categories and in particular for migrants are: limited awareness about their rights and procedures to file a complaint, reduced levels of trust in the institutions designed to protect their rights, low enforcement and implementation of legislative provisions and underdeveloped monitoring mechanisms, and underestimation by nationals of the level of discrimination against migrants. The reduced knowledge about rights and procedures to get redress when facing a discriminatory practice is mainly addressed through awareness campaigns conducted by different stakeholders (government and independent institutions, social partners, NGOs). Cases of unfavourable treatment during the selection process directed to persons with a foreign name, which may lead to a concentration of migrant workers in low skilled occupations below their skills and competency levels could be reduced by using depersonalised recruitment procedures, at least in the early stages (see Chapter 12). Despite positive developments in terms of assistance and protection of migrants, discrimination remains high and still impedes successful and sustainable economic and labour market integration. Particular challenges were identified and raised in Observations and Direct Request by the Committee of Experts on the Application of Conventions and Recommendations in some EU Member States: Netherlands 156 (high number of unemployed persons with Turkish, Moroccan and Antillean origin); Austria 157 (high unemployment rate of persons originating from ex-yugoslavia outside the European Union, Turkey and other third countries nationals); in Cyprus 158 (CEACR calls for additional analysis regarding the situation of third-country migrants in the labour market); 155 Article 45 of the Consolidate version of the Treaty of the functioning of the European Union: 1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 156 Observation Direct Request 2016 and Direct Request

136 Denmark 159 (CEACR acknowledges the improvement and calls for additional initiatives to improve the employment situation of men and women immigrants and their descendants from non-western countries); France 160 (continue to strengthen the measures to combat discrimination in recruitment faced by young persons with immigrant parents); Germany 161 (legislative developments, namely the Recognition Act which aims to improve the assessment and recognition of professional qualifications acquired abroad and its impact on integration of migrant workers and those with an immigrant background); Spain 162 (CEACR requested additional information on awareness-raising and educational programmes established to promote greater tolerance towards members of minority groups, and especially immigrants and persons of non-european origin); Sweden 163 (efforts to integrate the newly arrived immigrants); United Kingdom 164 (CEACR calls for additional measures to promote tolerance of and combat negative stereotypes related to ethnic minorities and migrant workers). The former European Commissioner responsible for Employment, Social Affairs and Inclusion László Andor said in an address in Bristol in 2014 In Britain, and some other EU countries, we have been witnessing increasing unease, animosity, and sometimes hostility towards migrant EU workers, in particular as regards the rights of citizens from other EU Member States to various forms of social benefits in host countries. He proceeded to point out the inconvenient truth that these migrants came to work and added to the labour efficiency of the national economy. The Brexit vote in the 159 Observation Observation 2011 (Repetition of 2010 Observation) Direct Request Observation Direct Request Direct Request

137 UK which turned in part on this issue is a reminder that human rights, once won, need constant vigilance lest they be lost, and the role of education on human rights in the workplace is essential. 165 In terms of third countries, the European Union has a well-established migration policy which is based on the solidarity principle and intends to promote a balanced approach in dealing with regular and irregular immigration. To this end, the legal basis for the EU migration policy is laid down in Articles 79 and 80 of the Treaty on the Functioning of the European Union (TFEU) namely: Article The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.[ ] Article 80 The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. According to the provisions of the TFEU, at EU level the main aims of the migration policy are: establishing the rules of entry and residence for third-country nationals entering and residing legally in one Member State for purposes of family reunification; providing incentives and support to measured developed by Member States with the aim of promoting integration of legally resident third-country nationals; preventing and reducing irregular immigration, through an effective return policy, that duly respects the fundamental rights of persons. First and foremost, the EU Member States retain their right to determine admission rates for people coming from third countries to seek employment. Other relevant competencies include: having the final decisions on migrant applications cases; establishing rules on long-term visas (stays for periods László ANDOR European Commissioner responsible for Employment, Social Affairs and Inclusion Labour Mobility in the European Union The Inconvenient Truth 137

138 longer than three months); laying down conditions to obtain residence and work permits; designing and implementing measures in order to promote and facilitate integration into the labour market of legally resident third-country nationals. The broader EU migration efforts include various approaches, including: The Global Approach to Migration and Mobility 166 adopted by the European Commission in 2011 with the aim of creating a general framework for cooperation with third countries. This is based on four pillars: legal immigration and mobility, illegal immigration and trafficking in human beings, international protection and asylum policy, and maximising the impact of migration and mobility on development. A very important fact is that human rights of migrants represent a cross-cutting priority. The European Agenda on Migration 167 was developed in 2015 to adequately respond to the crisis in the Mediterranean and the large influx of immigrants entering EU. It focuses on: reducing incentives for irregular migration, strengthening border management (saving lives and securing external borders), developing a solid common asylum policy, establishing a new policy on legal migration and enhancing integration policies and efforts. The European Agenda for the Integration of Third-Country Nationals 168 which draws attention to some of the major challenges faced, namely: the prevailing low employment levels of migrants, especially for migrant women; rising unemployment and high levels of 'over-qualification'; increasing risks of social exclusion; gaps in educational achievement; public concerns with the lack of integration of migrants. The European Migration Forum 169 (organised by the European Commission and the European Economic and Social Committee) provided an opportunity for civil society organisations to express 166 More information available at: More information available at: European Commission Communication COM (2011) 455 final, Brussels, , Third-country nationals are referred to as migrants coming from countries outside the EU and not holding the citizenship of an EU country. This group includes both persons born in a country outside the EU and persons born in the EU but not holding the citizenship of a Member State. Text of the Communication consulted and available at: Previously known as the European Integration Forum. Details on the Forum available at: 138

139 their views on migrant integration issues and to discuss with the European institutions challenges and priorities. Also, third country nationals are protected against discrimination in specific situations covered in by directives adopted at EU level. The specific provisions are included in Article 12 of Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State; 170 Article 23 of Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers; 171 Article 18 Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra- corporate transfer. 172 One tool that helps to understand the situation of migrants in the labour markets of EU Member States is the statistical information gathered through the Labour Force Surveys, which shows the status of persons born in a foreign country outside the EU. In terms of unemployment, the most recent data from 2015 presented in Figure 8.1 shows that in most 173 EU Member States with information available 174, foreign born persons have higher levels of unemployment. The largest gap between the foreign born and nationals unemployment levels was 10.6 percentage points. As to be expected where the overall unemployment rate is high, as shown in the countries on the left of the chart like Greece, Italy and Spain, the foreign born had significantly higher rates and on the right of the chart where overall unemployment is low as in the UK have negligible differences. Unique features of markets like Cyprus, Hungary and Malta give standouts With the exceptions of Cyprus and Hungary 174 For Bulgaria and Romania the values are not available. 139

140 Bulgaria Romania Greece Spain Finland France Belgium Croatia Sweden Italy Portugal Cyprus Slovakia Denmark Netherlands Slovenia Ireland Austria Latvia Poland Lithuania Luxembourg Germany Estonia Hungary Czech Republic United Kingdom Malta Figure 8.1 Unemployment Rate of Nationals and Foreign Born Persons (aged 15+) in Foreign Born Nationals Difference National-Foreign Source: EUROSTAT Database, Labour Force Survey. Difference Nationals-Foreign born is calculated based on LFS data. For Bulgaria and Romania the value of Unemployment for Foreign Born is not available. As for the employment rates, in 2015 ten 175 EU Member States register levels of foreign born employment superior to levels of nationals. The largest difference was reported in Hungary where employment rate of foreign born (71.1%) was 7.3 percentage points higher that the employment rate of nationals (63.8%). At the other end in Netherlands where the employment rate of foreign born was 61.1%, at a difference of 15 percentage points compared to the employment rate of nationals (76.1%). 175 Croatia, Czech Republic, Lithuania, Greece, Italy, Malta, Portugal, Cyprus, Luxembourg and Hungary 140

141 Romania Czech Republic Hungary United Kingdom Estonia Luxembourg Germany Lithuania Portugal Cyprus Malta Austria Sweden Latvia Denmark Ireland Slovenia Netherlands Poland Finland Italy Slovakia Croatia France Bulgaria Spain Belgium Greece Figure 8.2 Employment Rate of Nationals and Foreign Born Persons (15-64 years) in Foreign Born Gap Foreign to Nationals level Nationals Source: EUROSTAT Database, Labour Force Survey. Gap Foreign born to Nationals level is calculated based on LFS data. For Romania the value is not available. Particular challenges encountered by migrants or persons with a foreign background (first or second generation migrants) when trying to enter the labour market that could be triggered by discriminatory practices consist of unfavourable treatment during the selection procedures directed towards persons with a foreign name, which could lead to a concentration of migrant workers in low skilled occupations below their level of competency. Also, negative media campaign and support of discriminatory practices coming from political parties and other policy actors can negatively affect migrants integration efforts into the labour market. Despite positive developments in terms of assistance and protection of migrants, discrimination remains a hurdle in successful economic integration and in sustainably entering and remaining in the labour market Migrant Workers in the Republic of Korea Until 2000, there were almost no foreign national workers in Republic of Korea except those employed by multinational companies. Since then the number has grown to 1 million in 2016 (out of 27 million inhabitants classed as economically active.) Issues brought to the ILO have mainly been 141

142 related to a system of work visas (EPS) which cover about 300,000 workers where the company, normally an SME (Small- to Medium-sized Enterprise), invites a worker resident abroad to come to work for up 3 years, renewable to nearly 5 years. Issues arising from this system have included limitations on the number of subsequent changes of jobs and renewal of visas requiring the foreign national to return to his own country to reapply. Conditions under which these foreign workers were employed was a matter of continual concern since, like migrants to the EU, these workers were usually unaware of their rights. There was a decade-long struggle to permit a Migrants Trade Union to exist legally, with the case originally filed in The matter was eventually resolved by the Korean Supreme Court in According to government statistics, the population of foreigners who are above the age of 15 and domiciled in Republic of Korea is recorded at 1,373,000. Among them, 938,000 people were working as of May, This number is growing at about 10% per year and the number of employed has since risen to over one million. As Republic of Korea faces a shrinking workforce and an aging population in the coming years, it is presumed that such growth will continue. Table 8.1 Population of Foreigners in Korea (unit: thousands) Foreigners in Korea Above Age Amount of Increase Rate of Increase 1,256 1, (9.4%) Economically Population Productive (10.0%) Employed (10.1%) Unemployed (9.4%) Non Economically Productive Population (7.7 %) Source: Statistics Korea

143 Average Wages According to the 2015 Annual Report of National Taxation published by the Korean National Tax Service, the average wage of foreign workers in Republic of Korea was KRW 22.9 million, and the average wage of total workers including foreigners was KRW 31.7 million. It is notable that the ratio of the average wages of foreign workers (A), to those of overall workers including foreigners (B), has steadily increased from 66.2% to 72.2% over the course of 5 years. Table 8.2 Average Wage Gap Average Wage of Foreign Workers in Korea (A) 17.3 million KRW 18.2 million KRW 19.6 million KRW 21.3 million KRW 22.9 million KRW Average Wage of Overall Workers in Korea including Foreigners (B) 26.1 million KRW 27.9 million KRW 29.6 million KRW 30.4 million KRW 31.7 million KRW Ratio of A to B 66.2% 65.2% 66.2% 70.1% 72.2% Source: Korean Tax Service, 2015 Annual Report of National Taxation Experiences of Discrimination The Resident Alien Census 2013, funded by the Korea Immigration Service, researched experiences of discrimination against foreign workers in Republic of Korea. The report contained a number of questionnaires aimed towards foreign workers in Republic of Korea with regard to experiences of discrimination. The research extracted 1719 foreign workers as a sample unit among the entire list of foreign workers in Korea provided by the Ministry of Justice. For reliability of results, the research was conducted on a sample of at least 30 workers per country, and the number of foreign workers in each company did not exceed 10 workers. The number of people who have experienced discrimination was 427 (34.5%), exceeded by the number of people who have not experienced discrimination (809, 65.5%). Workers from Vietnam experienced discrimination the most (47.0%) and the workers from Cambodia experienced discrimination the least (19.6%). 143

144 Table 8.3 Experiences of Discrimination against Foreign Workers by Nation 2013 Nationality Experienced Not Experienced Cases Vietnam Cambodia Nepal Indonesia Philippines Sri Lanka Thailand Others Total ,236 Source: Resident Alien Census 2013 Immigration Service, Ministry of Justice The Resident Alien Census 2013 also surveyed the experiences of discrimination in relation to the educational level of each worker. Interestingly, the survey shows that highly educated workers experienced discrimination much more than other workers. Only 12.5% of foreign workers who had been educated below an elementary school level answered yes, but 40.3% of foreign workers who had been educated in college 4 years or more answered yes. The survey explained this figure by postulating that highly educated workers tend to anticipate greater rewards and treatment in Republic of Korea, and also tend to be considerably more sensitive about discrimination. Table 8.4 Experiences of Discrimination in relation to Educational Levels Educational Level Yes (percentage) No (percentage) Below Elementary School Middle School High School year Course College years+ Course College Source: Resident Alien Census 2013 Immigration Service, Ministry of Justice In addition, the Resident Alien Census 2013 compared the experiences of discrimination with the data from Figure 8.3 shows changes in the experiences of discrimination from 2010 to Except workers from Vietnam and Indonesia, the number of workers who experienced discrimination dramatically decreased over the course of 3 years. The percentage of total people who experienced discrimination dropped 11 points, from 45.5% to 34.5%. Again experience was sharply varied according to national origin. Cases 144

145 Figure 8.3 Changes in Experiences of Discrimination from 2010 to year year Vietnam Philippines Sri Lanka Thailand Indonesia Total Source: Resident Alien Census 2013 Immigration Service, Ministry of Justice Measures promoted by the Ministry of Employment and Labor The Korean government has steadily promoted and improved policies for the welfare of foreign workers. According to a White Paper published in 2015, it operated 4 major policy structures, as discussed below Employment Permit System for Foreign Workers This policy aids small and medium-sized enterprises which are unable to hire Korean workers. Those enterprises are eligible to employ foreign labourers after being issued permission for employment. It operates a 2-track procedure. One is for common foreign workers, referred to as the Employment Permit System (EPS) and the other is for ethnic Koreans having foreign nationality mainly those emigrating from China. Each track has different requirements and procedures, and the track for ethnic Koreans with foreign nationality is relatively simpler than the common track. Essentially, a foreign worker and an owner of an enterprise will enter into employment contract, and report the 145

146 contract to the Korean government. Then, permission for the employment of the foreign worker is granted. The EPS system is for the worker only and not family members. The size and type of eligible enterprises are restricted as follows: a manufacturing business (less than 300 workers or less than KRW 8 billion in assets), agricultural business, fishery business (less than 20 tons of products), construction business, or services business (5 specific types, including control of construction waste) Transfers of Workplace for Foreign Workers This policy is pursuant to the Act on the Employment (etc.) of Foreign Workers. The purpose of this Act is to prevent compulsory employment by unscrupulous entrepreneurs. According to the previous law, if a foreign worker lost his/her job, then he/she was forced to depart from Republic of Korea because his/her employment with the Korean enterprise was a condition of his/her residence in Republic of Korea. Now, the current Act in principle enables foreign workers to transfer their business or place of business, but prohibits them from transferring their business or place of business more than three times during first three years of their working period after entering Republic of Korea, and more than two times during the two years after extending their working period. There are also several exceptions such as involuntary turnover which permit extra transfers. Pursuant to the Act, the enterprises and foreign workers are obliged to register their status and to comply with the restrictions on transfer. Representations have been made to the ILO under ILO Convention 111 that the restrictions are still too severe given the type of unstable company the migrants often work in. In 2015 the follow on conclusions of the Conference Committee for standards made this observation. The Conference Committee considered that long-standing concerns in relation to the application of the Convention regarding migrant workers, gender-based discrimination and discrimination relating to freedom of expression, needed to be addressed. The Conference Committee, in particular, urged the Government to review, in consultation with workers and employers organizations, the impact of the new regulations regarding workplace flexibility and, if necessary, make adjustments to programmes to ensure appropriate protection of the foreign worker labour force. It also urged the Government to ensure that the rights of migrant workers are properly enforced regarding workplace changes and working hours, including through 146

147 regular workplace inspections and annual reports. 176 The consultants felt these recommendations were not adequately well informed, sometimes representing situations already corrected and that the precise situation of many migrant workers were not reported sufficiently comprehensively to the ILO, nor did the opinion reflect the work done by Korean government agencies and job centres, but also did not recognize the limited capacity of the inspectors to visit all locations where migrants might be employed Re-Entry Permission for Certain Foreign Workers This policy enables foreign workers who satisfy certain requirements to be issued re-entry permission. Some requirements under this policy are as follows: a worker must not have changed his/her business or place of business, must have worked at an agricultural or fishery business, or a manufacturing business with under 50 workers, and must have entered into an employment contract of more than one year after re-entry into the Republic of Korea with the original enterprise. If the worker satisfies the requirements, then he/she will be exempt from the obligation for employment education and Korean language testing. In addition, the original enterprise will be also exempt from the obligation to apply efforts to employ Korean workers Support for Foreign Workers with Language Services, Legal Counsel, Education, and Cultural Events This policy supports foreign workers with various services to help them to overcome the obstacles in and around their working environment. The government has established 9 main support centres and 36 branches for foreign workers. The government also operates a 24-hour call centre and educational programs to improve vocational skills. In addition, cultural events held by each nation are funded by the Korean government. Legal counsel services with regard to conflicts between Our opinion is that more delegation of reporting to the Migrant Trade Union and to Ministry Job Centres would assist in indentifying work places where discrimination took place, and that evidence of discrimination should allow further job movement than allowed by law, but the consultants also felt that no one was taking care of the needs of about 200,000 undocumented workers who are open to blackmail and oppression in any country but suffer extreme safety issues in some work places.. 147

148 businesses and workers are also provided. Selected Foreign work centers supported by the government assist foreign migrants to find jobs Employment by foreigners outside of the EPS system or arrangements for workers of Korean ethnic origin The Korean immigration system administered by the Ministry of Justice outside of the EPS system has demonstrated considerable flexibility, and many foreigners work in Republic of Korea outside of the two systems described, a large number through marriage to Koreans, and through studying in Republic of Korea and finding employment subsequently in larger companies. The Republic of Korea also has introduced an entrepreneur visa which allows foreigners to seek work and create start-ups Cases on Foreign Migrant Workers Hun-Ma 670 case (Constitutional Court of Korea, declared 30 August 2007) Some provisions of the Guidelines for the Protection and Supervision of Foreign Trainees of Industrial Technology issued by the government at the time of this case protected foreign trainees of industrial technology from assault and forced labour, provided a guarantee of minimum wages, and a guarantee of industrial security and health. However, the Guidelines did not include provisions to protect retirement allowances, preferential payment of outstanding wages, yearly vacations with payment, and the protection of pregnant workers as set forth in the Labour Standards Act. Therefore, even though foreign trainees could be deemed as workers under the Labor Standards Act, such trainees were not guaranteed labour rights because of the Guidelines. The complainant, who had come to Republic of Korea in March 2004 as an industrial trainee, brought a suit against the government, claiming that the Guidelines were unconstitutional because as an example. 148

149 they discriminated against industrial trainees in favour of Korean workers and foreign workers who were not industrial trainees. The court found that it was difficult to find reasonable grounds for not applying essential labour standards, as guaranteed by the Labour Standards Act, to foreign industrial trainees who as a practical matter are clearly in labour relationships, offering their services and taking directions and subjecting themselves to supervision from the employer while at the same time such trainees toil under the pretext of training, rendering their services and receiving money under the name of allowances. In particular, the court continued, according to an official notice by the Small and Medium Business Administration (a governmental body founded in 1996), only an employer meeting certain conditions concerning the employer s ability to observe the Labour Standards Act could be selected as a training company. Hence, it is irrational discrimination to exclude industrial trainees from the application of all provisions of the Labour Standards Act. According to Article 5 of Labour Standards Act and Article 4 of International Covenant on Economic, Social and Cultural Rights of United Nations, only a statute can limit the right to enjoy equal labour conditions for labour of same value. In this case, it is not a statute but rather an administrative regulation limiting such right, and therefore it is against the aforementioned legal principles. For these reasons, the Constitutional Court declared unconstitutional the regulation which infringes upon the complainant s right to equality. After the case, the government abolished the foreign industrial trainee system on 1 January 2007 (which system was supposed to continue until the end of year 2007 and therefore the decision of the Constitutional Court did benefit many industrial trainees) and adopted an employment sanction system in its place, which equally guarantees the basic rights set forth in the Labour Standards Act (such as retirement allowances and vacation) for foreign workers as well. Therefore, a marked improvement in the applicable system has already been realized. In addition, this court decision meant a foreign worker should be protected equally with Korean workers in terms of labour rights, and this seemed to have a noticeable impact on other polices concerning foreign workers (one reason that this case is interesting because the Constitutional Court specifically referred to the UN International Covenant mentioned above, which had been signed the year before). 149

150 Hun-Ma 1083 case (Constitutional Court, declared 29 September 2011) The complainant in this case was a foreign worker of Indonesian descent. After receiving a legitimate employment permit pursuant to the Act on the Employment (etc.) of Foreign Workers, the complainant entered the Republic of Korea on 22 July 2005 and started to work thereafter. A provision of the Act prevents foreign workers with employment permits from transferring their business or place of business no more than three times, and the complainant transferred his workplace three times, in accordance with the procedures stipulated in the Act. The employer of the workplace where the complainant had been working since 25 May 2007 after the third transfer, notified the complainant of his intention to cease the employment relationship after 25 June 2006 due to financial and managerial difficulties. The complainant visited the local job centre with the employer in order to receive consultation regarding his transfer of workplace, but was finally notified that, due to provisions of the Act and the Enforcement Decree thereto, no further transfer was possible. As such, the complainant filed a constitutional complaint arguing that the provisions of the Act and the Enforcement Decree which prevent foreign workers with employment permits from transferring their workplace more than 3 times in principle, and allow only 1 additional transfer if there are any exceptional grounds for which the foreign workers are not responsible are unconstitutional, infringing upon his freedom to choose his workplace, his right to work, and the like. The opinion of the nine justices was divided into three opinions. The ruling opinion declared the provision constitutional. One of the dissenting opinions declared the provision unconstitutional. The other dissenting opinion declared that the constitutional complaint should be dismissed as not being a matter for adjudication. The prevailing opinion by seven Justices of the Constitutional Court ruled that the Act was enacted (i) to protect local workers employment opportunities by limiting foreign workers from imprudently transferring their workplace, and (ii) to contribute to the balanced development of national economy through effective supply and demand of human resources for small or mediumsized companies. They also ruled that the provision in question allows foreign workers to transfer workplaces up to three times during the three years after their arrival in Republic of Korea for 150

151 certain reasons stipulated in the Act, and that an additional transfer is possible if there are any exceptional grounds specified in the Enforcement Decree to the Act. Lastly, the court ruled that the provision in question does not seem clearly unreasonable beyond the extent of discretion granted to the legislature, and does not infringe upon the complainant s freedom to choose his workplace. In addition, the ruling opinion stated that it could be concluded that the law in question was neither excessively arbitrary without any reasonable cause, nor was it in violation of the complainant s freedom to choose his workplace, given the fact that: (i) the relevant provision of the Enforcement Decree was provided to allow an extra transfer of workplace, in addition to the provisions of the Act which allow foreign workers to transfer their workplaces up to three times during the three years of their stay in Korea; (ii) the relevant provision of the Enforcement Decree extensively stipulates almost all possible grounds for the additional transfer of workplace for involuntary causes; and (iii) the systemic management of foreign workers for maintaining national security and social order and a period for adjustment to the culture and language for foreign workers is required The Migrants Workers Union The Republic of Korea is not a signatory of ILO Convention no 87 on Freedom of Association, and therefore the struggle of the migrant workers to form a Trade Union is only relevant to this Study to the degree that a Trade Union forms a protection to a group of workers against discriminatory treatment and attempts by employers to cheat workers of their legal rights under the Labour Standards Act. The Korean Labour Union Act ensures the right of workers to form a union which must be registered with the Regional Labour Office to become official. In April 2005, 91 foreign workers set up a labour union, but the Seoul Regional Labour Administration rejected their application for official status since several of the union members were in the country illegally. When the migrant workers union filed a lawsuit, the lower court found in favour of the Regional Labour Administration, but the appeals court sided with the plaintiffs. The Supreme Court didn t consider the case for eight years, during which time the first six leaders of the union were all deported from Republic of Korea. Responding to criticism that the decision came too late, the Supreme Court explained that putting in the effort to adequately review the 151

152 case - namely, collecting documents, conducting research, and taking into account various circumstances - took a considerable amount of time. Ultimately, the Supreme Court ruled that even undocumented migrant workers are workers considering the definition thereof under the Trade Union and Labour Relations Adjustment Act, and that they may establish and join labour unions regardless of whether or not they receive permission to work (2007du4995 case, declared 25 June 2015). However, there was one dissenting judge, who concluded as follows: Considering the intention of the Trade Unions and Labour Relations Adjustment Act, even a foreign worker falls under the definition of worker as defined by such Act in principle. [ ] However, considering that a foreign worker who is not permitted to work may be dismissed because of his/her illegal status at any time, and that categorization as a worker does not justify his/her residence in the Republic of Korea, it is unlikely that such migrant workers can improve and protect the conditions of their employment. Therefore, an undocumented migrant worker shall not fall under the definition of worker under the Trade Union and Labour Relations Adjustment Act.. Fortunately the opinion did not prevail. The courts and labour offices generally have a very creditable record of ensuring that complainants who are foreign received their full rights under this act, especially concerning severance pay Age Discrimination Overview The general retirement age in the EU is 65 for men and 60 for women, with a few exceptions. Most countries are moving towards equalising women and men at some future date and have begun to make adjustments accordingly. France proposes to increase the retirement age to 67. Work after the retirement age continues to increase. The mandatory retirement age in Republic of Korea is set at 60 (As in many employment related measures, retirement age extension is applied first to big companies, then to medium companies and finally to small companies). Prior to the 2013 act there 179 This is the consultants observation over a period of 25 years. However as in all discrimination cases, only those who complain succeed in having redress. and the majority of migrant workers are unaware of their rights. 152

153 was only an advisory retirement age of EU and Korean work-related statistics are all based on the age group which is increasingly unrepresentative and needs revision. 181 The grounds of age and disability are not mentioned specifically in the Convention no. 111, but nevertheless they are protected under the provision of Article 1 Para 2 as other grounds that were identified by the ratifying states in consultation with relevant stakeholders (representative of employers' and workers' organisations, other appropriate bodies). Complaints brought to the attention of national level institutions or to supranational courts on discrimination based on age concern mostly relate to: access to employment, recruitment (including job advertisements) and promotion practices, dismissals, forced retirement and harassment. The Republic of Korea was progressive in enacting laws to promote the employment and nondiscrimination for older employees, first passing Act on Prohibition of Age Discrimination in Employment and the Promotion of Employment of the Elderly (enacted 31 December 1991). Amended in 2008, it reminded citizens of their right to file a petition to the NHRCK, which was receiving complaints Age Discrimination in the EU Discrimination based on age is prohibited in the EU through the provision of Directive 2000/78/EC in cases of unfair treatment that can occur when applying for a job, in the workplace (treatment from colleagues or superiors), in access to promotion, training or additional activities designed for skill and competency enhancement by reason of being too young or too old. Although some justified differences of treatment on the ground of age could be used by EU Member States in their measures and policies developed to enhance access to employment and vocational training, or in access to certain advantages linked to employment, these should be carefully designed not to contravene the principle of equality and non-discrimination. 180 And many employers regarded 55 as the appropriate retirement age. As with other advanced countries there are proposals to raise the retirement age led by proposals to raise the point at which the national pension should begin which is currently age Tony Michell, One Million Jobs Initiative, Seoul

154 Netherlands Denmark Austria United Kingdom Malta Germany Sweden Finland Estonia Latvia Slovenia Luxembourg Ireland Czech Republic Lithuania France Poland Hungary Cyprus Romania Belgium Slovakia Portugal Bulgaria Croatia Spain Italy Greece Directive 2000/78/EC establishes some exemptions / justification of differences of treatment on grounds of age in: the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement 182 In terms of labour market situation, the employment rates of older workers are higher than those registered for young employees in most EU Member States (the exceptions being Austria and Malta). Figure 8.4 Employment Rates of young and older workers in years years Source: EUROSTAT Database, Labour Force Survey Employment rates above 50% for young workers (15-24 years) were registered in the Netherlands, Denmark, Austria and the United Kingdom and for older workers (55-64 years) in Sweden, Germany, Denmark, Estonia, the United Kingdom, the Netherlands, Lithuania, Finland, Latvia, Ireland, Czech Republic and Bulgaria. 182 Article 6 154

155 Greece Spain Croatia Italy Cyprus Portugal Slovakia France Finland Belgium Romania Bulgaria Ireland Poland Sweden Hungary Luxembourg Latvia Lithuania Slovenia United Kingdom Estonia Czech Republic Malta Netherlands Denmark Austria Germany As for unemployment rates in all EU Member States, in 2015 the level registered for young people was much higher than that of older workers. Almost 183 all EU Members have unemployment rates for young people above 10%, and in 15 Member States the rate is above 20%. Figure 8.5 Unemployment Rates young vs. older vs. general population (15+) in years years ILO Unemployment Source: EUROSTAT Database, Labour Force Survey For older workers, most of the EU Member States have rates of unemployment under 10% with only Greece, Spain, Croatia, Cyprus, Portugal and Slovakia surpassing that threshold. At EU level the actions designed to evaluate and combat discrimination on the ground of age include: Collecting information and statistics - the Eurobarometer survey carried out in 2015 focused on discrimination and identified that 42% of Europeans believe age discrimination is widespread; 52% believe the measures put in place to alleviate the impact of the economic crisis are excluding older people aged over 55 years; 56% believe that a job applicant s age is a disadvantage if they are over 55 years; 183 With the exception of Germany 155

156 Monitoring the national legislation to ensure respect of the non-discrimination principle. It is for the competent national authorities to apply it in each particular case. Supporting awareness and information campaigns aimed at informing citizens about discrimination on the ground of age, rights and responsibilities. Also, through declaring 2012 the European Year for Active Ageing and Solidarity between Generations. This brought together several events focused on creating better opportunities for active ageing and strengthening solidarity between EU Member State governments representatives and relevant stakeholders at all levels. Complaints about discrimination based on age concern mostly: access to employment, recruitment (including job advertisements) and promotion practices, dismissals, forced retirement and harassment. National level cases: United Kingdom - Mr J Peters v Rock Chemicals Limited t/a Rock Oil Company, 28 January 2016, Case Number /2015, Employment Tribunal Manchester Mr Peters, an employee of Rock Chemicals, was dismissal by his employer because it wanted him to retire when he reached the age of 65 and had already recruited an replacement in anticipation of this. The Employment Tribunal of Manchester based on the evidenced provided decided that Mr Peters had suffered age discrimination in relation to the dismissal decision. 184 France the French Equality Body Defenseur des Droits reached an agreement decision no from 12 May 2015 regarding discrimination based on the ground of age in relation to an employment offer. A person noticed an offer of employment related to a position of communication officer indicating "25-35 years". Decision: The Defender of Rights intervened with the management of the company to discuss this offer of employment in the light of the applicable legal texts. The management agreed with the decision and assured that it will take the necessary changes and be more careful in its upcoming job postings. 185 Bulgaria - In the case, the applicant was refused access to apply for an assistant professor position based on his age. This provision was included in a domestic provision which set a maximum age

157 limit. In October 2010, the Supreme Administrative Court confirmed the decision previously issued by the Bulgarian Equality Body ordering a university to reopen the job contest without applying age limits. The Court explicitly held that the Scientific Degrees and Scientific Titles Act, that was in forced at that time, mentioned specific age limits but was to be set aside based on the supremacy of European Union law, especialy Directive 2000/ Cyprus - In 2015 the Equality Body received a complaint about the Nicosia Municipality advertised vacancies. The advertisement stated that applicants would be assessed on the basis of their academic qualifications and experience in related duties. Applicants scoring equally on these criteria would be further assessed on the basis of their date of birth (priority was to be given to younger applicants). The Municipality preference for younger candidates without justifying this preference on any of the exceptions foreseen in the EU Directives was considered as direct discrimination by the Cypriot Equality Body. No sanctions were imposed for failing to comply with the anti-discrimination legislation. 187 Another relevant case brought before the Court of Justice of the European Union for discrimination based on age was Mangold v Helm (2005) C-144/ A 56- year-old German citizen employed on a fixed term contract in a permanent full-time job claimed that the lack of protection over age 52 arising from the amendments of German Employment Promotion Act of 1996, was unjustified age discrimination. The CJEU held in its judgment that the German law contravened the Directive 2000/78/EC even though it did not have to be implemented until the end of 2006, because legislation that lets employers treat people differently based on their age offends the principle set in international law of eliminating discrimination on the basis of age Age discrimination in Republic of Korea, and legislative efforts and their limitations Ruling of the Court Grand Chamber is available at: occ=first&part=1&cid=

158 The National Human Rights Commission Act defines an act of favourably treating, excluding, discriminating against or unfavourably treating a particular person regarding employment on the basis of age as one of the discriminatory acts violating equal rights. The Korean National Assembly revised the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (Age Discrimination Act) that came into effect on 22 March 2009, seeking to prevent employers from applying unreasonable age restrictions to virtually all aspects of employment in terms of recruitment and employment, salary and other welfare benefits, education and training, placement, transfer or promotion and retirement or dismissal 189 by issuing correction orders to or imposing penalties on those in violation. While the Age Discrimination Prohibition Act allows those who suffered age discrimination, in a hiring process for example, to file a petition with the National Human Rights Commission of Korea (NHRCK), it is difficult for them to prove that they were rejected because of their age. As most employers keep personnel information classified and thus refuse to disclose it for security reasons, there is plenty of room for employers to falsely present other factors as a reason for rejection. Interestingly, the Special Act on Promotion of Youth Employment, one of the core governmentinitiated measures against youth unemployment, has resulted in reverse discrimination against those jobseekers in their 30s. The Act aimed to promote youth employment by offering a variety of benefits, including subsidies to small businesses that hire young workers; however, the Enforcement Decree to the Act defines youth as those who are 15 to 29 years old. Consequently, employers began giving priority to those in their 20s in the recruitment process in order to receive the government subsidies and other benefits. In this regard, it is worth noting that the number of employees in their 30s has decreased by approximately 38,000 over the last year, while those in their 20s have increased by approximately 68,000 according to the Korea Employment Information Service Challenges in Practice

159 As shown in Table 8.5 below, Koreans seem to experience age discrimination most frequently at the very outset of their employment process the recruiting and hiring stages. There was a sharp increase in the number of age discrimination complaints filed with the NHRCK in 2009 and 2010, followed by a significant decrease in Presumably, the fact that the Age Discrimination Act came into force in early 2009 explains such fluctuations; awareness of statutory rights across job seekers or employees may have been raised with the enactment of the Act, causing the number of petitions to rise, and it may have dropped as employers began recognizing and growing increasingly wary of the penalties for age discrimination under the Act. Table 8.5 Number of Age Discrimination Complaints Filed with NHRCK (2002~2011) 191 Total Recruitment Hire Placement Training Promotion Wages Other Benefits Retirement Age Layoff Retirement Others Total Source: National Human Rights Commission of Korea In reality, many employers are circumventing the Act by specifying age limits as preferences instead of qualifications in their job postings. Even if employers do not explicitly include the age factor in the job application process, a subtle form of age restriction seems widespread across the recruiting market, particularly for recent college graduates. In this regard the government has monitored job postings to inspect the age discrimination and has imposed corrective orders or letters of warning since 2010 twice per year. A survey of 511 companies conducted in January this year by SARAMIN, a major online recruiting agency in Republic of Korea, shows that more than half (51.2%) of the respondents rejected applicants because of their age, despite their excellence in other aspects. Those companies cited the following as the main reasons for such age-based decisions: because the existing employees 191 Statistics disclosed in a forum held by NHRC on 20 March 2012 to check age discrimination status after 3 years of Age Discrimination Prohibition Act enforcement. 159

160 feel uncomfortable (48.3%); because they have higher expectations including wages in proportion to their age (45.8%); and because they may be detrimental to the organizational hierarchy (35.3%). It is remarkable that age turns out to be the most commonly considered factor in the recruitment process 54.6% of the respondents admitted that age is a factor followed by sex (34.9%) and level of education (21.8%). On average, the respondents said that their de facto age limits for male and female applicants are 30.3 and 28.4, respectively. The optimal ages of the applicants, they claimed, are 28.0 for males and 25.7 for females. 201 out of the 511 companies being surveyed said they are reluctant to hire those who exceed the above-mentioned optimal ages. 192 The results of a survey conducted by the NHRCK in 2011, as shown in Table 8.6 below, reveal certain thought-provoking correlations among different potential bases of discrimination. It is notable that those jobseekers who are often categorized as socially vulnerable, namely women, the elderly, the undereducated, blue-collar workers, non-regular employees and the disabled allegedly face more age discrimination than other groups

161 Table 8.6 Survey of Job Seekers: Age Discrimination by Characteristics 193 Characteristics Classification Those Claiming Experiences of Age Discrimination Number of Respondents Percentage Sex Male % Female % Age 20~ % 30~ % 40~ % 50 or above % Level of Education High school or below % Vocational/Junior college % College % Graduate school or above % Industry Manufacture % Whole/Retail sales % Finance, Insurance % Construction % Others % Occupational Category Professional % Office management % Production/Manufacture % Sales service % Others % Level of New % Experience Experienced % Employment Status Full-time % Short-term/Non-regular % Intern % Others 4 100% Disability Status No disability % Disabled % Total Sum or Average % 8.4. Disability-Based Discrimination Overview Disability is another area where official intent is clear, but success is not guaranteed. This is complicated by the diversity of conditions which result in disability, with the EU going further in distinguishing between physical disability and health related disability. The ground of disability is not mentioned per se in the Convention no. 111 but is covered and protected under the same conditions as the ground of age. Also, the ILO adopted the Vocational 193 Status Investigation on Discriminatory Practices in Corporate Hiring Process (2011) conducted by NHRC. 161

162 Rehabilitation and Employment (Disabled Persons) Convention no. 159 from 1983 which ensures equality of opportunity and treatment between persons with disabilities and other workers Situation in the EU Discrimination based on disability is prohibited under the Employment Equality Directive and obliges employers to provide reasonable accommodations take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer 194 for people with disabilities. The common measure used in EU Member States to enhance participation of peoples with disabilities into the labour market is the mandatory quotas system. In general, the system is applicable using a ceiling to determine the employers that must employ a set quota of people with disabilities and in some cases the employers have the option of paying a levy for failing to comply with the rule. In order to assess the situation of peoples with disabilities in the labour markets of EU Member States, in 2011, an Ad-Hoc Module of Labour Force Survey was designed and conducted. The two categories used for assessing the situation of disabled were persons with difficulties in basic activities and persons with limitation in work caused by a health condition or difficulty in a basic activity. Only in France the persons with limitation in work (59.6%) managed to register an employment rate above the level of persons with difficulties in basic activities (56.2%). Countries with employment levels above 50% for people with limitation in work were Sweden (61.5%), France (59.6%) and Finland (50.6%). 194 Article 5 of Directive 2000/78/ EC 162

163 Lithuania Spain Hungary Slovakia Estonia Ireland Latvia Croatia Czech Greece Portugal Bulgaria France Germany Poland Denmark United Cyprus Belgium Slovenia Sweden Finland Netherlands Italy Romania Austria Luxembourg Sweden Luxembourg Finland Austria France Germany Portugal Latvia Estonia United Slovenia Denmark Cyprus Italy Spain Netherlands Belgium Lithuania Czech Greece Malta Poland Croatia Slovakia Romania Bulgaria Ireland Hungary Figure 8.6 Employment Rates of people with disabilities (15-64 years) in 2011 Difficulty in basic activities Limitation in work caused by a health condition or difficulty in a basic activity Source: EUROSTAT Database, Ad-Hoc modules of Labour Force Survey. In terms of unemployment level in all EU Member States the rate is higher for people with limitation in work compared to those with difficulty in basic activities. In the case of people with difficulty in basic activities only eight 195 countries had unemployment rates lower than 10% and only four 196 in the case of people with limitation in work. Figure 8.7 Unemployment Rates of people with disabilities (15-64 years) in 2011 Difficulty in basic activities Limitation in work caused by a health condition or difficulty in a basic activity Source: EUROSTAT Database, Ad-Hoc modules of Labour Force Survey. Values for Malta are missing. 195 Slovenia (9.9%), Sweden (9.6%), Finland (9.1%), Netherlands (8.6%), Italy (8.1%), Romania (8.1%), Austria (6.0%) and Luxembourg (4.9%) 196 Netherlands (9.5%), Romania (9.1%), Austria (7.9%) and Luxembourg (8.0%) 163

164 At EU level and in EU Member States the main challenges arising in terms of discrimination based on disability is correctly defining the concept of disability and the obligations employers must satisfy to respect the reasonable accommodation requirements. Disability was further explained in recent CJUE judgements 197 and it must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. Another relevant judgement is in the Case C 354/ where the CJUE (Fourth Chamber, judgement from 18 December 2014) establishes the Directive 2000/78 must be interpreted as meaning that the obesity of a worker constitutes a disability within the meaning of that directive. (Paragraph 64) Another important aspect in this context is the employers obligation to reasonably accommodate (Article 5 of Directive 78/2002) the workplace needs of the persons with disabilities. The CJUE also explained that such measures are the consequence, not the constituent element, of the concept of disability (EU: C: 2013: 222, Paragraphs 45 and 46) and that although such accommodation measures may not have been taken in respect of Mr Kaltoft does not mean that he could not be a disabled person within the meaning of the directive. (EU: C: 2014: 2463, Paragraph 57) National level cases Belgium - The Labour Tribunal of Mons and Charleroi decision from 9 March 2015 Short presentation of the case: The case concerns an employee hired under an indefinite employment contract in a funeral company. The employee brought a medical certificate requesting modifications of his schedules and the nature of his tasks because of medical problems (multiple sclerosis). The two parties failed to reach an agreement and the employee was dismissed. The employee raised the case to the Labour Tribunal of Mons and Charleroi and claimed that he was discriminated and demanded compensation for the damages (six months salary). 197 HK Danmark, EU:C:2013:222, paragraphs 37 to 39; Z., C 363/12, EU:C:2014:159, paragraph 76; and Glatzel, C 356/12, EU:C:2014:350, paragraph Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft vs. Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund. Decision available at: ode=lst&dir=&occ=first&part=1&cid=

165 Court Decision: The Tribunal decide that multiple sclerosis could be considered as a disability and concluded the claimant was directly discriminated against and the employer failed to put in place reasonable accommodation. As a consequence, the Tribunal convicted the employer to pay ,48 EUR compensation for damages suffered (six months salary). 199 Spain Madrid Provincial Court Decision Judgment 211/2009 of 6 May 2009 Short presentation of the case: The airline Air Nostrum (subsidiary of Iberia Airlines), refused to allow three deaf people on board on the grounds that they were unaccompanied. The reason invoked was the Flight Operation Manual which states that the safety of deaf people could be at risk in an emergency situation. A court of first instance ruled in Iberia s favour, but the Madrid Provincial Court ruled in favour of the three deaf people, who were represented by the National Confederation of the Deaf and the Spanish Committee of Disabled People s Representatives. Court Decision: The Court decided that this is a case of indirect discrimination and notes that National Law prevails over the airline Flight Operation Manual. Also, the Court ordered Iberia to take steps to ensure that infringement of rights of deaf persons to travel with the Airline stops and ordered a symbolic compensation of one euro for each deaf person. 200 Ireland - Equality Tribunal decision DEC-E Donaldson vs. Marks & Spencer (Ireland) Ltd Short presentation of the case: The complainant suffered from Benign Intracranial Hypertension which was recognized as a disability under the national law. The supervisor was informed about the employee condition about six months after her employment began. The employee further suffered from other health issues and had to undergo surgery and needed additional time off work. The employer had a meeting with the complainant and issued a return to work order within a set period of time, which the employee failed to respect given her condition, resulting in her dismissal. Court Decision: The complainant was awarded re-engagement from the date of dismissal with remuneration from 6 weeks later, meaning that the employer was required to pay almost three years pay, plus an additional 14,000 EUR as compensation for moral damages for the effects of the discrimination. 199 Source: Source: 165

166 Denmark The Eastern High Court, ruling in Case No. B June 2016 Short presentation of the case: The claimant had undergone a serious brain surgery. After the surgery she experienced abnormal tiredness and was on sick leave and on partial sick leave for 10 months. The persons wanted to resume employment but in the bank where she had been employed for 18 years. But the extreme fatigue impeded to work for more than hours a week. The hospital recommended a flexible job with reduced working hours (for people with a reduced ability to work) but the employer rejected and after the persons called in sick again was dismissed. The persons explained that her health problems constituted a disability and that her dismissal was discriminatory. The employer argued that due to the massive sickness absence since the surgery, the employee could not be expected to perform the job she was appointed to do and thus had to be dismissed. Court decision: The court decided based on the medical records that the person suffered from a diagnosed disabling fatigue and the impairment at the time of the dismissal could be characterized as long term and that it constituted a disability defined by the law. Since the employer knew about the disability of the employee it had the obligation to provide reasonable accommodation. Based on the fact that the employer had refused the complainant a flexible job without examining the options, the court concluded that the employer had not provided reasonable accommodation and thus that the dismissal constituted discrimination based on disability. The court awarded DKK constituting 12 months of salary in compensation Disability discrimination in Republic of Korea The Republic of Korea has also used the mandatory quota system for disability. The Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons has, since 1991, provided obligation to hire people with disabilities to private sectors (since 2000 to public sectors), and has allowed the government to offer financial incentives to firms to achieve this

167 The Republic of Korea may be unique in also having created as early as 1990 the Korea Employment Agency for the Disabled (KEAD), which monitors the situation, quotas and other related matters. Despite this companies appear to be falling behind in their quota performance Institutional Support The National Human Rights Commission Act defines an act of favourably treating, excluding, discriminating against or unfavourably treating a particular person regarding employment on the grounds of disability as one of the discriminatory acts violating equal rights. The Act on Prohibition of Discrimination against Disabled Persons, and Remedies against Infringement of Their Rights (etc.), effective since 11 April 2008, prohibits discrimination against the disabled in terms of recruitment and hiring, wages and benefits, job training, placement, promotions, transfers, retirement, resignation and firing, and obligates employers to accommodate disabled employees with facilities or devices, job training, and other working conditions as applicable while imposing penalties on those in violation. The earlier Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons offers financial incentives such as subsidies and loans to those who hire the disabled, and even requires central and local governments and employers of a certain size in the private sector to employ the disabled up to a prescribed number. The Act also established the Korea Employment Agency for the Disabled (KEAD) in 1990, a semigovernmental agency reporting to the Ministry of Employment and Labour, which provides the disabled with vocational counselling, training, and rehabilitation information and job placement, and conducts surveys and research studies to expand their job opportunities and improve their working conditions Challenges in Practice The following statistics and survey results are excerpts from the Overview of Statistics for the Disabled in 2016, an annual periodical published by the Employment Development Institute of KEAD

168 Figure 8.8 Rate of Disabled Employees at Businesses Obligated to Employ the Disabled Notes: 1. Inclusive of the central and local governments and businesses obligated to employ the disabled. 2. Threshold size of the businesses obligated to employ the disabled: businesses with 300 employees or more prior to 2004; 50 employees or more from 2004 onwards. 3. The scope of mandatory employment of the disabled in the governments expanded,and no more industry-specific exemption rates since For the government, the mandatory rate of obligatory employment of the disabled was adjusted from 2% to 3% from 2009 onwards. 5. For the private sector, the mandatory rate was adjusted from 2.3% to 2.5% (3.0% for state-owned companies and quasigovernmental agencies) in The severely disabled have been double counted since For the government, the figures since 2010 include workers who are not public officials. 8. For the private sector, the mandatory rate was adjusted from 2.5% to 2.7% since 2014; for other public agencies and local government-owned companies, from 2.5% to 3.0%. 168

169 Figure 8.9 Rate of Disabled Employees in the Private Sector and Public Sector Public sector (mandatory rate 3.0%) / Private sector (mandatory rate 2.7%) As illustrated in Figure 8.8, the overall rate of disabled employees at those businesses obligated to hire the disabled has been steadily increasing. The mandatory rates of the disabled employees specified by Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons appear to vary according to size of company. The Act imposes administrative charges on those who fail to meet the mandatory rate and the Minister of Employment and Labour may announce to the public the non-compliance of those employers. Indeed, as Figure 8.9 shows, except those private businesses with 100~299 employees, private employers in general fall short of the mandatory rate, and large companies appear to be the worst offenders. Table 8.10 suggests that companies are rather reluctant to acknowledge that employing the disabled would improve their corporate image or contribute to their overall management. It is interesting to note that the level of employer satisfaction rises in proportion to their size. 169

170 Table 8.10 Employers View on the Merits of Employing Disabled Workers Merits Average Total Employed Disabled? the Yes No 5~49 Size of Employer (Number of Employees) 50 or above 50~ ~ 999 1,000 or above Improves Corporate Image Contributes to Overall Management Graded on a scale of 1~5: 1=Not helpful at all, 3=Indifferent, and 5=Very helpful Table 8.11 Main Reasons Cited by Employers for Being Unable to Hire the Disabled Size of Employer (Number of Employees) Reasons Total 300 5~49 50 or above 50~299 above or Lack of Jobs Fit for the Disabled or Inability to Find such Jobs Lack of Disabled Workers with the Required Competence No Job Applications from the Disabled No Recruitment Plans Ignorant of How to Employ the Disabled Difficulties in Personnel Management Lack of Devices and Facilities to Accommodate the Disabled Injurious or Dangerous Working Conditions Temporarily Unfilled but will Imminently Employ the Disabled Others Total Table 8.11 deserves attention in that the most oft-quoted reason for not hiring the disabled differs across employer size, or the number of employees they have. While employers with fewer than 300 employees cited the lack of jobs fit for disabled workers (42.3~48.5%) as the main reason, those with 300 or more employees said they could not hire the disabled because of the lack of disabled workers with the required competence (46.9%) or because of injurious or dangerous working conditions (32.7%). The survey indicates that either the disabled need more vocational training, or potential employers need to remove their prejudice against disabled workers capabilities. 170

171 8.5. Race, colour, national extraction and social origin grounds for discrimination In the context of the Convention no. 111, discrimination on the basis of race, colour 203 and national extraction are examined together, since they are interlinked. That is the case also for many countries where in constitutional or legislative provisions adopted to prohibit discrimination, the grounds of colour and national extraction are linked to the ground of race. The Convention no. 111 understands through the term race any discrimination against linguistic communities or minority groups (whose identity is based on religious, cultural characteristics, national or ethnic origin), including also indigenous peoples. The ground of race is assimilated in some national laws that combat discrimination with those of colour, descent, nationality, ethnic or national origin, but this should be treated with caution and grounds of colour and race should not be considered identical. Ensuring equal opportunities and treatment of linguistic communities, ethnic minorities and indigenous peoples in employment and occupation is also extremely important. These should be included and protected at various legislative levels in national constitutions, labour laws, specific anti-discrimination or equality legislation and serious violations in penal laws. Another significant challenge is discrimination on the ground of national extraction which covers distinctions made on the basis of a person s place of birth, ancestry or foreign origin. It includes discrimination against persons who have acquired their citizenship by naturalization or who are descendants of foreign immigrants. Also, discrimination based on national extraction could affect the employment and occupational opportunities and perspectives of minority language groups Racial discrimination in the EU In the European Union, the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (also known as the Racial Equality Directive) requires EU Member States to prohibit discrimination on the ground of racial or 203 The ground of colour is specifically mentioned in the legislation of the following EU Member States: Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Hungary, Latvia, Malta, Slovakia, Slovenia and United Kingdom. 171

172 ethnic origin. Still, the terminology used by some Members States in their national legislation is slightly different, prohibiting discrimination on grounds such as ethnicity 204 or ethnic affiliation 205 and also on other similar grounds like: nationality or national origin, language, colour or membership of recognised national minorities. Some of the European Commission actions implemented at EU level and aimed at combating discrimination and ensuring equality include: enhancing the knowledge base on discrimination issues; raising awareness about rights, obligations and positive outcomes from promoting diversity; supporting research on equality and discrimination; promoting partnerships and enhance stakeholders (NGOs, social partners and equality bodies) capacity to combat discrimination; guiding the development of equality and anti-discrimination policies at national level; promoting the exchange of good practices between EU countries; supporting anti-discrimination training activities. Combating discrimination on the basis of race, colour and national extraction in employment and occupation is undertaken through improved access to education and to a wide range of vocational training courses. With this approach, access can be enhanced to a wide range of paid occupations and employment, especially those with relevant opportunities for advancement and promotion. Also, improving non-discriminatory access and participation in active employment measures, education, vocational guidance and training is essential in extending the range of occupations and opportunities from which people are able to choose. National level cases Ireland - Equality Tribunal DECE Short presentation of the case: The complainant was a black Zimbabwean national employed as a Security Operative. Apart from racial harassment experienced, the employee also had long working hour regimes over the period of employment. As an evidence in court the employee presented a 204 Bulgaria, Latvia, Lithuania, Slovenia and Sweden. 205 Austria 172

173 text message sent by the supervisor to a colleague that said "Remember you are working with a black guy, you will have to watch him". Court Decision: The Equality Tribunal awarded 25,000 EUR by way of compensation for the distress suffered by the complainant as a result of discrimination in working conditions and harassment. 206 Belgium - Appeal Court of Brussels 10 February 2015 Short presentation of the case: In 2001, an employee of temporary work agency Adecco lodged a complaint because the company was using a coding system to list job seekers based on their race and ethnic origin. Native Belgian people were registered in the computer system under the code BBB by reference to Blanc Bleu Belge ( White Blue Belgian ). The system was developed to comply with request from clients that did not want to hire people with a foreign origin. Court Decision: The Appeal Court of Brussels confirmed in February 2015 the decision of the Tribunal of first instance holding the Adecco firm liable of discrimination. As to damages, the Court decided the Adecco has to pay a compensation of 25,000 EUR to the employee. 207 Spain - Social Court 19 of Barcelona Decision 1/2013, 29 December 2012 Short presentation of the case: A Moroccan citizen living in Spain and receiving unemployment benefits went back to Morocco for 20 days without first requesting an authorisation from the Spanish state institution paying the benefits. In 2011, two years after the trip to Morocco, the Employment Agency, based on an Internal note issued for checks on people that were not available for work, sanctioned the persons for the 20 days of absence from the Spanish territory without informing and forced him to refund the full amount of unemployment benefits received over the past two years. Court Decision: The court sided with the Moroccan citizen and ordered the Employment Agency to return any unemployment benefits that had been removed. The Court argued that the internal note was not discriminatory in itself, but the way it had been implemented was considered discriminatory. The Court based its reasoning on a statistical observation: before the implementation of the internal note 88% of cases of sanctions concerned Spanish citizens, whereas 12% of cases concerned Moroccan citizens. After the implementation of the internal note, 3% of 206 Source: Source: 173

174 cases concerned Spanish citizens and 74% of cases concerned Moroccan citizens. This increase in the sanctions against Moroccans persons was an "indication of discrimination on grounds of nationality", according to the Court. 208 Denmark - Board of Equal Treatment, decision No. 9505, May 2016 Short presentation of the case: An organ player who was born in and had grown up in Taiwan applied for a position in a church. One of the job tasks would have been to establish and run a children s choir. She passed the interview but was rejected on the ground that language barrier should be overcome first before being considered for the job. Still, the persons didn t understand the rejection since she had passed the official Danish language test and previously taught music to children. When the person realized that the church did not establish a children s choir after appointing another organ player, filed a complaint with the Board of Equal Treatment for discrimination on the ground of ethnic origin. Decision of the Equality Body: The Equality Body identified that the requirement of special Danish language capabilities could constitute indirect discrimination based on ethnic origin if the requirements are unjustified with reference to the nature of the position in question. The church couldn t prove that the language barrier was a hindrance to the woman s handling of the position. The decision of the Board of Equal Treatment was that the person had been indirectly discriminated against on ethnic origin and awarded a compensation of DKK to the person Race, Colour and National Extraction in Korea As noted in chapter 4 there is no general act specifying racial attitudes to be illegal. Every attempt to pass a general anti-discrimination act in Korea has run into religious opposition relating to homosexuals. The National Assembly is reluctant to pass legislation which a sizeable minority (extreme Christians holding these views may be estimated at less than 20% of the population) where mass protest or electoral disadvantage may be felt. No attempt has been made to make an act purely related to race. The ILO CEACR requested information on why race was not identified in 208 Source:

175 the 2015 Employment Framework Act. 210 The answer given by the government was far from adequate stating merely that there were few foreigners in Korea Political opinion as grounds for discrimination The ILO Fundamental Convention no. 111 prohibits any distinction, exclusion or preference made on the ground of political opinion, but includes some exception when such grounds represent inherent requirements of the job in Article 1.2. Discrimination on the basis of political opinion covers protection for political affiliation and for activities of expressing or demonstrating opposition to established political principles and opinions. This protection cannot be claimed when opinions are expressed or demonstrated in a violent way Political discrimination in the EU In the European Union framework and relevant for EU Members States, the Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation prohibits direct and indirect discrimination, harassment and instruction to discriminate on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. The ground of political opinion in not specifically mentioned in this Directive, but could be indirectly covered under the ground belief as long as those political views do not go against the principles of respect for dignity and human rights. Most EU Members States specifically mention political opinion or similar alternatives in their legislation combating discrimination and these are: Belgium, Bulgaria 211, Greece and Croatia 212, 210 The Committee requests the Government to clarify why the grounds of race, colour and political opinion have been omitted from the anti-discrimination provisions of the Framework Act on Employment Policy 2015, and to provide information on its practical application, including relevant judicial and administrative decisions. Please continue to provide information on the progress made in the adoption of general antidiscrimination legislation, including any obstacles encountered Political affiliation 212 Political or other belief 175

176 Cyprus 213, Denmark, Estonia, Finland 214, France, Germany, Hungary, Italy, Latvia 215, Lithuania 216, Luxembourg, Malta, the Netherlands, Poland, Portugal 217, Slovakia, Slovenia, Spain 218 and the United Kingdom (Northern Ireland 219 ). In terms of discrimination based on political opinion, a challenge identified by the ILO Committee of Experts on the Application of Conventions and Recommendations is represented by the remaining employment restrictions impose on accessing occupations in the public sector for persons linked with former political systems in some EU Member States. Specific issues raised by CEACR and CAS about the ground of political opinion were further presented and addressed in Chapter It is worth mentioning the case of Germany where a legislative restriction against persons from oppression apparatus of the communist regime used in the past has since been removed. We are very much to incline to conclude that in the long run, it is likely that restrictions of this kind will be removed by all other EU Member States as threats from political systems of the past and their oppression apparatus diminish or disappear. A particular interesting court case related to the discrimination on the ground of political opinion was Redfearn v Serco Ltd. ECHR Although it was brought to national courts as discrimination based on racial grounds and dismissed, the European Court of Human Rights (Fourth Section) decided in 2012 that UK law 221 was not covering and allowing a potential claim based on discrimination for political belief. Short description of the case: Mr. Redfearn was a bus driver for Serco Ltd. who was elected as councillor representing a right-wing party and was made redundant for "health and safety" reasons. 213 Political or other conviction 214 Political activity 215 Political or other conviction/opinions, party membership 216 Membership of political parties and nongovernmental organizations 217 Political or ideological convictions 218 Political ideas, ideology, affiliation to a union 219 Political belief 220 More details available at: and The Equality Act 2010 provides protection based on political beliefs but did not at the time when the case was raised. 176

177 He brought the case to national courts that he was being directly racially discriminated but wasn t successful. Nevertheless, the application to the European Court of Human Rights held that his right to freedom of association has been infringed, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of political beliefs Situation in the Republic of Korea The Republic of Korea exercises no discrimination on political opinion, with two exceptions. One is the National Security Law dating from 1948, of which section 7 prohibits publicly praising North Korea (People s Republic of Korea). The Korean government considers this irrelevant to a discussion of ILO Convention C111, however international commentators continue to insist that it is. No known cases in which this clause was applied to a workplace have been found within the study period present. 222 The second relates to the State Public Officials Act, Article 65, which forbids public servants (including teachers) from expressing political opinions in public. This resulted in a case widely discussed outside of Korea, where school teachers who joined a public demonstration on a politicised social issue, were deemed to be performing a political act and dismissed. This led to a conflict between the teachers union and the government, supported by the courts, which led to the disbanding of the union. As the Republic of Korea is not a signatory of Convention on Freedom of Association, discussions at the ILO have been brought before the eyes of the Committee of Experts under Convention no. 111 for three l years. The Korean Constitutional Court ruled that the the Ministry of Employment and Labour s action (in not reinstating the dismissed teachers) was in fact constitutional, given the national condition of Korea being technically still at war with North Korea. However, the ILO continued to discuss this because of the subsequent dismissal of further teachers who arranged demonstrations over the Sewol Ferry disaster. The Committee of Experts felt that the Korean definition of political actions was unusually restrictive. However, the discussion moved beyond the boundaries of Convention no.111, and is an illustration of how complex an issue can be 222 Korean advice was to drop this sentence. It is correct that the clause is rarely used in the courts but the threat of using it intimidates freedom of political discussion

178 where it concerns matters which are only partially covered by a single Convention. 223 Some public organizations in the Republic of Korea are demanding that the government sign ILO Convention no. 87 to provide clarity as to their rights Religion as a cause of discrimination In the case of religion the role of Convention no. 111 is to provide protection against discrimination in employment and occupation that could be triggered by limited religious freedom or intolerance towards persons of a particular faith, a different faith, or towards those who profess no religion Religious discrimination in the EU In the EU, Directive 2000/78/EC includes some exceptions for particular occupational activities where the characteristic constitutes a genuine, legitimate, justified and determining occupational requirement including activities within churches and other public or private organisations the ethos of which is based on religion or belief 225. It also sets special provisions for recruitment of teachers and police officers in Northern Ireland. 226 Challenges in terms of discrimination based on religion are growing and probably would intensify in the coming years given the increasing diverse landscape of the European societies. Various religious beliefs brought by migrants, refugees and asylum-seekers coming from different cultural and religious backgrounds have added to the existing religious diversity of the EU. 223 The fact that this issue was discussed in three consecutive years in this case and others in the opinion of the consultants having examined all the documents not normally open to the public is largely the result of inadequately framed information being given to the ILO, and imprecise requests repeated in consecutive years from the Committee of Experts. In 2015, recognizing this, the ILO committee wanted to investigate further Concerning possible discrimination against teachers on the basis of political opinion, and the Conference Committee urged the Government to provide more detailed information on this issue so as to allow a solid assessment of the compliance of the related laws and practice with the Convention 224 The full text of the ILO requests can be found in and from this pages requests in previous years can be accessed. 225 Article 4(1) and (2) of the Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 226 Article

179 Some of the areas of employment and occupation where discriminatory practices based on religion could arise include: special types of clothing and prohibition of wearing religious signs, including head coverings, special working conditions and failure to acknowledge and accommodate religious holidays, requirements to make an oath when accessing special positions that could be incompatible with the religious belief or practice. Discrimination based on religion could be boosted by deep-seated prejudice and stereotyping, a rise in hate speech (especially in the context of political debate) and increasing violence against religious minorities, including attacks on places of worship or religious gatherings. In order to combat discrimination based on religion in employment and occupation, additional measures are required to accommodate diverse religious needs and to promote full participation in society of all individuals irrespective of their religion. National level cases Austria- Supreme Court Decision Nr. 9ObA117/15v, 25 May 2016 (published 4 July 2016) Short presentation of the case: Ruling referred to the dismissal of an employee of a notary office. The employee converted to Islam and progressively changed the clothing in line with the religion requirements. The employer accepted the wear of headscarf (hijab) and the abaya, but issued a warning to the employee when she started wearing the full-face veil (niqab) and later dismissed the individual for non-compliance. The case was raised as discriminatory dismissal on the basis of religion and about discrimination on the basis of religion in relation to working conditions. Court Decision: The Supreme Court decision came after two contradicting judgments in the lower courts and it ruled that the dismissal was not discriminatory as it was covered by the exception for genuine and determining occupational requirements (Art 4(1) of Directive 2000/78/EC, as transposed in Austrian Equal Treatment Act). The court acknowledged that prohibition of religious clothing constitutes direct discrimination. Still, the non-veiling of the face constitutes a genuine and determining occupational requirement for the occupational activities of an employee of a notary office Source: employee-because-of-her-wearing-full-face-veil-niqab-not-discrimination-on-the-basis-of-religion-pdf-158- kb 179

180 Belgium - The Labour Tribunal of Brussels decision from 18 May Short presentation of the case: A Muslim woman employed with a flexible contract as a cashier in a supermarket in Brussels informed its employer that she had decided to wear an Islamic headscarf during the working hours. The employer informed her that this would not be tolerated. The employee decided to never go back to work and to ask for compensation for damages because of the termination of the contract. The Belgian Equality body the Interfederal Centre for Equal Opportunities tried to reconcile the situation but didn t receive any replies to inquiries send to the employer and referred the case to the Labour Tribunal of Brussels. Court Decision: The Tribunal ruled that there was no direct or indirect discrimination. In the case of direct discrimination, the employee failed to bring any evidence that was treated differently from the other employees on the ground of her religion/belief. Regarding indirect discrimination, it noted that the work regulations enshrined a neutrality policy and requested from the employees to wear clothes with the name of the company. Therefore, the Tribunal concluded that even though this neutrality policy could have disadvantaged the applicant, this was considered as proportionate and reasonably justified Republic of Korea The Republic of Korea has a very diverse and liberal attitude to religion, and is entirely secular in governance, having a population split between approximately one third Christians (various denominations), one third Buddhists (various orders) and one third other, including no religious belief. Religion has only emerged as a labour issue in cases where sects operate businesses and demand membership as a condition of employment. 229 While there is hearsay evidence of this practice, as far as can be determined this has never been formally raised as an issue with an official body. 228 Source: the-headscarf-at-work-is-not-discriminatory-a-decision-in-line-with-the-previous-national-case-law-pdf-85- kb 229 This could represent an exception permitted by the Convention no. 111 under the Article 1 Para 2 Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 180

181 8.8. Case study Situation of Roma in EU Member States For many EU Member States the Direct Requests and Observations adopted and published regularly by the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) 230 and the examination of Individual Cases by the Committee on the Application of Standards (CAS) 231 flag the situation of Roma peoples and the efforts pursued to ensure integration and combat discrimination faced by this ethnic group. The Roma people represent by far the largest ethnic minority in the European Union. Roma is the term generally used at EU level and includes diverse groups names like Roma, Gypsies, Travellers, Manouches, Ashkali, Sinti and Boyash. It is estimated that around million Roma people live in Europe and about 5-6 million are EU citizens living in one of the EU Member States. Although EU and its Member States have put in place legislation combating discrimination against all ethnic minorities in employment and occupations, many Roma still face challenges in entering the labour market and suffer from prejudice and social exclusion that prevents them from achieving their potential. Removing discrimination against Roma and promoting their equal opportunities in employment and occupation is a recurrent concern at EU level and in the EU Member States. In order to highlight this challenge, Roma inclusion efforts were recognized as an integrated part of the EU 2020 Strategy, especially in the Inclusive Growth priority and in the Flagship Initiative of a European Platform against Poverty. 232 Also, increasing Roma labour marker participation could help in limiting the effects on economic growth driven by the declining population trend that many EU Member States face. Awareness of the Roma situation in the EU was further raised through the 2011 European Commission Communication (COM(2011) 173 final) which calls for EU Member States to grant Roma people full access in a non-discriminatory way to vocational training, to the job market and to self-employment tools and initiatives. Access to micro-credit should be encouraged. In the public 230 See information available on ILO NORMLEX system regarding the situation in: Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Greece, Hungary, Ireland, Italy, Portugal, Romania, Slovenia, Slovakia and Spain. 231 Czech Republic Individual Case discussion 2016 (ILC) 232 Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of Regions, The social and economic integration of the Roma in Europe, Brussels, , COM(2010)133 final. 181

182 sector, due attention should be given to employment of qualified Roma civil servants. Public Employment Services can reach out to the Roma by providing personalised services and mediation. 233 This Communication calls on EU Member States to develop and adopt national strategies for Roma integration containing concrete policy measures in areas including education, employment, healthcare, housing and essential services. In the framework established at EU level each country developed a Roma strategy or a set of integrated policy measures in areas where urgent actions were needed in order to enhance social inclusion and society integration of Roma. Also, the European Council adopted a Recommendation on 9 December 2013 on effective Roma integration measures in the Member States (2013/C 378/01). Assessment reports of the National Roma Integration Strategies are developed regularly at EU level and represent a structured mechanism put in place to identify EU Member States progress in achieving Roma inclusion. These reports are based on information provided by government of each Member State, NGOs, international organisations and the EU Fundamental Rights Agency (FRA). EU funding represents another important tool available to EU Members States that supports the actions and measures developed at national level to combat discrimination in employment and occupation and to ensure social integration of Roma. Some of the major challenges faced by the Roma in accessing and remaining in the labour market include: discriminatory recruitment practices; low educational attainment and limited access to quality education and training; considerable unemployment levels and depreciation of skills; concentration in low-skilled occupations irrespective of their educational levels. Most of these challenges are worsened by negative attitudes, stereotypes and prejudices about capabilities and preferences and by segregation of Roma children in education, causing low educational levels. 233 Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of Regions, An EU Framework for National Roma Integration Strategies up to 2020, Brussels, , COM(2011) 173 final. 182

183 The segregation in education (attendance by disproportionate numbers of Roma children in special schools for children with intellectual disabilities; segregated classes or sections for Roma pupils within mixed schools; and the prevalence of so-called ghetto-schools ), pointed out in Direct Requests of CEACR addressed to EU Members States, causes a vicious cycle limiting future employment and occupations perspectives of Roma and their labour market outcomes. Given the size of the challenge presented by integration of Roma into EU Member States and other European countries broader regional initiatives have been developed, like the Decade of Roma Inclusion ( ) 234 established by the Council of Europe (not the EU) and thus representing 46 European nation states including Russia, and not just the EU28. It represents a political commitment of European governments to eliminate discrimination against Roma and close the gaps between this minority and the rest of society. The Decade brought together governments, intergovernmental and nongovernmental organizations, as well as Romani civil society and its main priority areas included education, employment, health and housing. It gathered stakeholders from twelve Council of Europe member countries: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Hungary, Macedonia, Montenegro, Romania, Serbia, Slovakia and Spain; along with four observers: Slovenia, the United States, Norway and Moldova. Although many initiatives have been developed and put in place to combat Roma discrimination in employment and occupations, further efforts need to be made by EU Members States to enhance Roma participation in education and labour market. Action and measures focused on improving access to vocational training and education, awareness raising, affirmative action and targeted employment programmes could lead to positive outcomes. This could be further intensified by reinforcing coordination and cooperation pathways between authorities at various levels (national, regional and local) and civil society representing and protecting Roma community interests. A very important limitation in studying in depth the challenges faced by Roma in employment and occupation is represented by the lack of reliable and comparable statistical data for the EU Members States with a large Roma community. Some of the causes for this lack of reliable statistical information can be found in the development of indicators and in the collection process of data. Most of the labour market indicators are not broken down to collect information about national minorities. Also, it is thought that in Ad-Hoc research modules or Censuses designed to specifically 234 More information available at: 183

184 collect information on minorities, Roma individuals often declare themselves as the majority of nationals, without identifying explicitly as Roma. Collecting reliable and comparable data about Roma employment and occupation situation is extremely important for policy design and for spotting indirect discriminatory practices Policy implications Each of the issues addressed in this chapter have their own causes and, hopefully, solutions. The case of the Roma is a cautionary tale to the EU that despite some of the best legislation, discrimination can persist and become institutionalised over time, just as gender discrimination was institutionalised in the past, and still persists in some areas because of that legacy. The recent surge of migrants admitted to the EU is a reminder that there is a danger that the case of the Roma might be repeated in the case of recent Islamic migrants and member nations need to be vigilant against the institutionalization of discrimination. The Republic of Korea appears in most of the cases in a favourable light where regulation is light, and less favourable in those cases brought to the ILO under Convention no 111, where simple deregulation might be the best policy. The statistical charts indicate which nations have had the most success in limiting discrimination, notably Sweden in the area of disability. 184

185 9. The Challenge of Gender discrimination in EU Member States and the Republic of Korea 9.1. The universality of the challenge Despite the best efforts of the best governments on the planet, gender issues continue to reflect what was once classic discrimination in terms of treating women as second class citizens and workers, but is now best described as institutional (or core ) discrimination in that, while laws appear to mandate equality, in actuality there are still gender differentials in terms of wages, women are usually a small minority in upper management and in a number of respected professions and occupations. Equally there are professions and occupations in which they are the overwhelming majority but these tend to be lower paid. This remains the case in both the EU Member States and in the Republic of Korea. The equality between women and men, especially in the labour market, is a topic extensively covered, debated and remains one of the challenges faced by all the countries analysed in this report. Identifying and quantifying gender equality and developing reliable international comparisons represents a priority for major international institutions and for many researchers. An accurate measurement of gender equality continues to be hampered by the availability of data and by scarcity of reliable information for dimensions such as sexual harassment and violence against women. However, despite the methodological difficulties in developing reliable and internationally comparable measurements, the indexes presented in the report reveal the persistence of differences in social and economic status between women and men. Achieving gender equality implies overcoming multiple barriers and all EU Member States and Republic of Korea have put in place various policies and practices to realise that goal. Still, additional efforts are required to close the gap in payment and in participation into the labour market. From both the Observations and Direct Requests addressed by the ILO CEACR further presented above in Chapter 6.8, and the analysis of labour market indicators, most of the countries analysed in the report face persistent horizontal segregation (concentration of women in certain sectors of 185

186 the economy) 235 and vertical segregation (concentration or the overrepresentation of women in the lower levels of the professional hierarchy) in the labour market. As for discrimination based on sex the common issues relate to refusal to employ; to dismissal based on pregnancy or maternity; and to sexual harassment. Several cases were referred to national and international courts on circumstances linked to remuneration of pregnant workers and those on parental leave; access to employment, dismissal and other unfavourable treatment; right to receive bonuses and non-extension of fixed-term contracts due to pregnancy or parental leave Measures of Inequality There are many indices measuring this gap. Some of the main indexes developed for international and EU comparison reviewed and presented in this report include: Gender Development Index (GDI), the Gender Empowerment Measure (GEM), Gender Inequality Index (GII), Global Gender Gap Index (GGGI) and Gender Equality Index (GEI). After consideration the consultants have chosen two to be the most useful in rapidly understanding the current situation. These are the Economist Glass Ceiling Index and the OECD Wage Gap data. The Economist 2016 index is shown below. The advantage of the Economist Index is that, being online 236, it permits the reader to alter the weightings of the different factors that determine a country s position. If strong weighting is given to the Korean strengths of paid maternity leave and childcare, the country moves up the index from last place (according to the default weightings), to sit between the Netherlands and New Zealand and above the US, Japan and Britain. 235 Human health and social work activities; Education; Wholesale and retail trade; Manufacturing

187 Figure 9.1 The Economist Glass-ceiling index Source: The Economist Since the wage gap is the major factor holding the Republic of Korea at the bottom rung, the OECD study of pay differentials was chosen as the second key index. A comparison of the two shows that some Nordic nations which place highly on the Economist Index according to its default weightings do not in fact have the smallest pay differentials so their position in the Economist Index is also based on the balance of factors chosen. 187

188 Figure 9.2 OECD Gender Wage Gap Gender Wage Gap Source: OECD 9.3. Measuring inequality improvements over time Measuring gender inequality at a single moment of time is important, but more important is the need to measure over time, to understand the degree to which improvement is taking place. Diagram 8.3 illustrates the amount of change on consistent measurement criteria between 2008 and 2014 using the Gender Inequality Index. As the GII places Republic of Korea in the middle of the pack rather than its more usual position at the extreme end, it is important to explain what is different about GII. Since identifying and quantifying gender equality and developing reliable international comparisons represents a priority for major international institutions and for many researchers, the first section presents some of the international and EU indexes constructed to capture these gender base differences. This is done in order to have a better understanding of the gender equality challenge faced by the EU Member States and Republic of Korea in a comparable perspective. 188

189 Given the complexity of gender equality, the indexes designed by major international institutions rely on a large number of indicators and take into account various dimensions of female social integration and participation. In 2010 Human Development Report, the United Nations Development Programme included the Gender Inequality Index (GII) a measurement of gender disparity. Although positive evolutions were registered at that point, women and girls hadn t (and still haven t) gained gender equity. They were still facing discrimination in areas including health, education, political representation and the labour market, which impeded their social integration and development as well as the freedom of choice. The Gender Inequality Index aims at better identifying the differences in the distribution of achievements between women and men. A high value for this index signifies large disparities between women and men in a country. The Gender Inequality Index includes three dimensions considered of extreme importance for women: reproductive health, empowerment and labour market participation. The reproductive health dimension includes two indicators: maternal mortality ratio and adolescent fertility rates. The empowerment dimension uses some of the indicators previously included in GEM, including the ratio of female to male representatives in parliament. Also, given the importance of education Educated women are more likely to enjoy satisfying work, participate in public debate, care for their and their family s health and take other initiatives 237 the empowerment dimension includes as an indicator educational attainment at secondary level and above. The integration of women in the labour market dimension assesses female labour market participation rates. This dimension still fails to evaluate two main issues related to female participation in the labour market, namely, occupational segregation and gender wage gap. This omission is mainly due to the lack of comparable data worldwide. The GII recognizes the importance of other aspects related to female status in society, such as time use, access to assets, domestic violence and local-level empowerment 238 that were also not included in the analysis due to lack of data. The index reveals the position of women in over 150 countries and the gender gaps in major areas of human development. The index captures the loss of achievement within a country due to gender 237 HDR, 2010, pp HDR, 2010, pp

190 Romania Malta Bulgaria Hungary United Latvia Estonia Slovakia Croatia Greece Poland Korea Lithuania Cyprus Ireland Portugal Luxembourg Spain Czech Republic France Finland Italy Belgium Netherlands Sweden Austria Denmark Germany Slovenia inequality and highlights areas that need urgent policy intervention in order to overcome and remove systematic disadvantages faced by women. Figure 9.3 Gender Inequality Index Gender Inequality Index Value 2014 Gender Inequality Index Value Source: UNDP, Human Development Report 2010 and 2015 This diagram shows that all countries experienced progress between 2008 and 2014, but that the best in 2008, the Netherlands did not maintain its position in 2014, slipping from best to six position. By contrast Denmark and Sweden maintained the momentum. Romania, the worst in 2008 maintained its position which Estonia, Latvia and Lithuania changed considerable, but the best performer of all was Slovenia. The Republic of Korea improved considerably but no more than all other countries, and less than those mentioned, meaning that the Republic of Korea slipped two places. The factors which move Republic of Korea from the bottom are thus health factors and infant mortality: key issues, but ones which do not affect the workplace EU Measures of gender equality The need for a Gender Equality Index was initially identified by the European Commission in the Roadmap for Equality between Women and Men adopted for the period and subsequently included in the action plan of the Strategy for the Equality between Women and Men

191 The European Institute for Gender Equality an European Union agency which supports the EU and its Member States efforts to promote gender equality, to fight discrimination based on sex and to raise awareness about gender equality issues was assigned the task of constructing a composite indicator on gender equality that reflects the multi-faceted reality of gender equality, and that is specifically tailored towards the policy framework of the European Union. The work on the development of the Gender Equality Index for Europe started in 2010 and the results were officially launched in June The Gender Equality Index aims at presenting the complex gender equality issues in an easy to understand and user-friendly manner. It consists of six core domains: work, money, knowledge, time, power, health and two satellite domains (intersecting inequalities and violence). 239 The domain of violence measures gender-based violence against women, and the domain of intersecting inequalities consider specific population groups such as lone parents, careers or people with disabilities. The Index provides results comparable at European Union level and for each EU Member State. 239 The European Institute for Gender Equality, (2015), Equality Index 2015 Measuring gender equality in the European Union

192 Figure 9.4 Gender Equality Index, Domains and sub-domains of the conceptual framework Source: The European Institute for Gender Equality (EIGE), Gender Equality Index 2015 Measuring gender equality in the European Union , p.12 For constructing the Gender Equality Index every dimension is covered by several indicators 240 : Work dimension 241 Full-time equivalent employment (%, 15+ population); Duration of working life (years); Employed people in Education, Human health and Social work activities (%, Idem 241 The Indicators Employees with a non-fixed start and end of a working day or varying working time as decided by the employer (15 64 employed), Workers having undergone training paid for or provided by their employer or by themselves if self-employed (15+ workers) and Workers perceiving that their health or safety is not at risk because of their work (15+ workers) were included in the original version of the index in

193 employed); Ability to take an hour or two off during working hours to take care of personal or family matters (%, 15+ workers); Working to tight deadlines (%, 15+ workers); 242 Money dimension Mean monthly earnings (PPS) ; Mean equivalised net income (PPS, 16+ population); Not at-risk-of-poverty, 60% of median income (%, 16+ population); S20/S80 income quintile share (%, 16+ population); Knowledge dimension Graduates of tertiary education (%, population); Tertiary students in the fields of Education, Health and Welfare, Humanities and arts (%, tertiary students); People participating in formal or non-formal education and training (%, population); Time dimension Workers caring for and educating their children or grandchildren, every day for one hour or more (%, 15+ workers); Workers doing cooking and housework, every day for one hour or more (%, 15+ workers); Workers doing sporting, cultural or leisure activities outside of their home, at least every other day (%, 15+ workers); Workers involved in voluntary or charitable activities, at least once a month (%, 15+ workers); Domain of power Share of ministers (senior/junior) (%, 18+ population); Share of members of parliament (both houses) (%, 18+ population); Share of members of regional assemblies (%, 18+ population); Share of members of boards in largest quoted companies, supervisory board or board of directors (%, 18+ population); Share of members in Central Bank (%, 18+ population); Domain of health Self-perceived health, good or very good (%, 16+ population);life expectancy in absolute value at birth (years); Healthy life years in absolute value at birth (years); Population without unmet needs for medical examination (%, 16+ population); Population without unmet needs for dental examination (%, 16+ population); Intersecting inequalities and Violence are two satellite domains and the score is not taken into account when calculating the final score of the Gender Equality Index. 242 The last two indicators were introduced in the revised version of the index in

194 SE FI DK NL BE UK SI IE FR DE LU ES EU-28 AT EE LV MT CY CZ PL HU IT LT HR BG EL PT SK RO Figure 9.5 Gender Equality Index 2005 vs Source: The European Institute for Gender Equality (EIGE), Gender Equality Index 2015 Measuring gender equality in the European Union , p.75 The 2012 values, the latest available, of the Gender Equality Index indicate improvements in equality between women and men in most of the EU Member States compared with the 2005 values. They also show negative evolutions in some Member States a situation that should spur policy makers to adopt measures that will reverse the trend and increase female participation in the labour market and in other dimensions quantified by the Index. Being a EC initiative, data for Republic of Korea is not included. However, the progress made by countries in the previous index, France, Austria, and Luxemburg disappear on the measures included. Romania remains at the back of the pack, but Malta (MT) appears only a little below the average for the entire EU

195 9.5. General considerations about the indexes Seen in a comparative perspective most of the indexes show some unanimity at methodological and conceptual level. Also, there is a high level of similarity between them which comes from the approach to measure equality by concentrating on the absence of gender gaps. The main areas and dimensions selected for analysis like economic, education, health and empowerment are included in most of indexes taking into account the importance played and the availability of comparable statistical data. The differences in approach and design have an impact on the scores, but they show similarities in the ranking for the most part, although the Republic of Korea which appears in the lowest position in many of the diagrams shown, changes its position significantly in the UN Gender Inequality Index for 2015 where it is in the middle of the pack (presumably because of the weighting of various issues). The best performing EU Member States in terms of female status in society and gender equality were Sweden, Denmark and Finland, occupying leading position in most of the indexes. An accurate measurement of gender equality continues to be hampered by the availability of data for the indicators used and by lack or scarcity of reliable data for dimensions like sexual harassment and violence against women. However, despite the methodological difficulties in developing reliable and internationally comparable measurements, the indexes reveal the persistence of differences in social and economic status between women and men Gender equality and sex discrimination in the EU Member States In the European Union efforts to eliminate gender based discrimination, especially in pay, dates back to 1957, when in the Treaty establishing the European Economic Community (EEC) Article included the principle of equal pay between men and women for equal work. Afterwards, the efforts to achieve gender equality and to prohibit discrimination on the ground of sex were covered by several directives adopted at EU level, namely: Directive on equal pay for men and women (75/117/EEC); 243 Article 157 Treaty on the Functioning of the European Union 195

196 Directive on equal treatment of men and women in employment (76/207/EEC, amended by Directive 2002/73/EC and repealed by Recast Directive2006/54/EC); Directive on equal treatment of men and women in statutory schemes of social security(79/7/eec); Directive on equal treatment of men and women in occupational social security schemes(86/378/eec, amended by Directive 96/97/EC and repealed by Recast Directive 2006/54/EC); Directive on equal treatment of men and women engaged in an activity, including agriculture, in a self employed capacity (86/613/EEC, repealed by Directive 2010/41/EU); Pregnant Workers Directive(92/85/EEC); Parental Leave Directive (96/34/EEC, repealed by Directive 2010/18/EU); Directive on equal treatment of men and women in the access to and the supply of goods and services (2004/113/EC); Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Recast). Nowadays the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights of the European Union all contain provisions that are relevant for the field of gender equality. The Recast Directive 2006/54 defines in Article 2 the major concepts for discrimination based on sex: direct discrimination - where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation; indirect discrimination - where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary; harassment - where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment; 196

197 Therefore discrimination based on sex is prohibited in all EU Member States and cannot be justified, unless a specific written exception applies when the sex of the person concerned is a determining factor for the job. To this end, all the EU Member States have adopted legislation prohibiting discrimination based on sex which covers direct and indirect discrimination, harassment and sexual harassment, but given the complexity of the issue some challenges remain. Studies covering the legislative framework of all EU Member States highlight some of the common challenges arising: Difficulties in proving indirect discrimination some EU Members States haven t registered any complaints or cases dealing with this form of discrimination. The situation could be explained by complicated procedures or improper coverage / definition of indirect discrimination in national law. 244 Harassment related to sex and sexual harassment although these are treated as two separate concepts characterized as forms of discrimination in all EU Member States, they continue to remain underreported. The awareness of victims that redress is available through discrimination claims remains low and the stigma effect is considered to play a major role in deterring victims from reporting. 245 Another important challenge is combating less favourable treatment of women related to pregnancy or maternity leave which is covered by the prohibition of discrimination provisions included in Article 2 of the Recast Directive 2006/54/EC. Several cases were referred to the Court of Justice of the European Union on circumstances linked to these grounds, namely: remuneration of pregnant workers and workers on maternity leave 246 ; 244 European Commission, Directorate-General for Justice and Consumers, A comparative analysis of gender equality law in Europe 2015, Written by Alexandra Timmer and Linda Senden for the European network of legal experts in gender equality and non-discrimination, January European Network of Legal Experts in the Field of Gender Equality, Numhauser-Henning, A., Laulom, S. Harassment related to Sex and Sexual Harassment Law in 33 European Countries. Discrimination versus Dignity, European Commission, 2011, available at: The Court of Justice of the European Union (CJEU) rulings in the cases: Case C-432/93 Gillespie; C-147/02 Alabaster. 197

198 right to receive bonuses 247 ; non-extension of fixed-term contracts 248 ; access to employment, dismissal and other unfavourable treatment during maternity and parental leave 249. Discrimination on the grounds of pregnancy The Court of Justice of the European Union had ruled in the Case C-177/88 (Elisabeth Johanna Pacifica Dekker and Stichting Vormingscentrumvoor Jong Volwassenen (VJV Centrum) Plus) that An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness. (Judgement of the Court, 8 November 1990) SOURCE: clang=en&mode=lst&dir=&occ=first&part=1&cid= Therefore the refusal to employ or dismissal of a pregnant woman based on her pregnancy or her maternity amounts to direct discrimination on the grounds of sex and goes against the provisions of Article 2(2) of the Recast Directive. Also, any unfavourable treatment directly or indirectly linked to pregnancy or maternity represents discrimination on the ground of sex. The protection of pregnant women and those who recently given birth was strengthened at EU level through the adoption in 1992 of the Pregnant Workers Directive 92/85/EEC. The most important provisions concern: period of maternity leave of at least 14 weeks (Article 8); entitlement to the payment of an adequate allowance during pregnancy and maternity leave (Article 11); the 247 CJEU cases: C-333/97 Lewen; C-194/08 Gassmayr; C-471/08 Parviainen. 248 CJEU cases: Case C-438/99 Melgar; Case C-32/93 Webb; Cases C-109/00 Tele Danmark A/S. 249 CJEU cases: Cases C-177/88 Dekker; C-179/88 Hertz; C-320/01 Busch and C-394/96 Brown. 198

199 allowance should guarantee an income at least equivalent to that which the worker concerned would receive in case of illness (Article 11(3)); protection against dismissal from the beginning of the pregnancy until the end of the maternity leave (Article 10); health and safety protection for pregnant women or women who are breastfeeding through temporarily adjusting the working conditions, moving the worker to another job or, if there is no other solution, granting the worker temporary leave; also, if an employer dismisses an employee during the period of her pregnancy or during maternity leave, he or she must substantiate the grounds for dismissal in writing (Article 10(2)). Women on maternity leave have the right to return to the same or an equivalent job on terms and conditions which are no less favourable and to benefit from any improvement in working conditions through Article 15 of the Recast Directive 2006/54/EC. However, in some 250 EU Member States this provision is not explicitly covered in law, which raises difficulties in ensuring compliance. Another issue of particular importance in this context is the reconciliation of work, private, and family life and the specific measures adopted in the EU Member States to address the challenges of work-life balance. The ILO Convention no. 111 deals with equality and non-discrimination in employment and occupation and the simple way of understanding the gender equality challenge in the world of work would be to look at the participation level of women in the labour market, in economic activities 251 and by occupational 252 level. Also, the gap between women and men in employment and unemployment rates should be considered, along with the statistics about remuneration of women and men, especially the gender pay gap indicator. The situation of labour market participation 253 of women in the Member States of the European Union is very diverse. If we analyse the Employment Rate of Women indicator in 2015 the values registered by EU Member States were between 42.5% in Greece and 74% in Sweden a Netherlands, Belgium, Germany and Hungary are identified in specific studies. 251 Statistical Classification of Economic Activities in the European Community, Rev. 2 (2008), also known as NACE (Rev.2), more info available at: EN.PDF 252 ILO, International Standard Classification of Occupations 2008 (ISCO-08), more info available at: Information about the evolution of activity rates of women in EU Member States are included in the Annex III. 199

200 Sweden Denmark Germany Netherlands Estonia United Finland Austria Lithuania Latvia Czech Republic Portugal Slovenia Luxembourg France Bulgaria Cyprus Belgium Ireland Hungary Poland Slovakia Romania Spain Croatia Malta Italy Greece percentage point difference. In the case of male employment rates the values are between 59.3% in Greece and 79% in the Netherlands, with just a 19.7 percentage point difference. Figure 9.6 Employment Rates of Women in EU Member States Source: EUROSTAT Database, Labour Force Survey, Levels indicated for years 2002, 2008 and Considering the employment rates 254 of women from a historical perspective, it is straightforward to observe a positive trend in most EU Member States, with rates in recent years higher than the corresponding rates in The countries that made the biggest gains in terms of employment of women in the period were Malta, Bulgaria, Germany, Estonia, Latvia, Poland, Lithuania, Luxembourg and Hungary. Over the same period, rates decreased in Denmark, Portugal and Greece. In the case of Greece, the employment rate of women reached a maximum level in 2009 (48.9%), but afterwards the severe impact of the economic crisis experienced by this country lead to a sharp decrease to 39.9% in 2013 and a small bounce back to 42.5% in Other countries where the 254 Please examine the Annex IV for a more complete picture of the employment rates evolution in the EU Member States between 2002 and The year 2002 was taken as a baseline year since is the first one that has the values available for all 28 EU Member States. 200

201 Malta Italy Greece Romania Czech Republic Slovakia Poland Hungary Ireland Luxembourg Spain Netherlands United Kingdom Croatia Slovenia Germany Austria Cyprus Belgium Estonia France Denmark Bulgaria Portugal Latvia Sweden Finland Lithuania global crisis had a negative influence on the employment of women were Croatia, Cyprus, Italy, Ireland, Portugal, Spain, and Slovenia. Analysing the gender gap in employment (difference between the employment rate of males and females) over a longer period of time ( ) permits identification of a positive trend for most 256 EU Member States. Countries like Spain, Malta, Luxembourg, Greece, Cyprus, Belgium and Portugal registered a strong decrease in the employment gender gap between 2002 and Figure 9.7 Gender Gap in Employment in 2015 and difference Source: Authors calculations based on EUROSTAT Data. The highest gender gap in employment is still registered in Malta (25.2 percentage points) but dropping steeply from an all-time high of 43.4 percentage points registered in Other countries that still experience a high gender gap in employment were Italy (18.3 pp), Greece (16.8 pp), Romanian (16.3 pp) and Czech Republic (15.5 pp). At the other end of the spectrum the countries with a low gender gap in employment in 2015 were Lithuania (1.5 pp), Finland (1.6 pp), Sweden (3.0 pp) and Latvia (3.5 pp). If we include in the analysis the level of education, an extremely important factor that has a visible impact on the participation of individuals into the labour market, the values registered for 256 Romania, Slovakia and Netherlands have a negative evolution comparing the values for 2015 and

202 Sweden Lithuania Malta Netherlands Germany Latvia Denmark Romania Bulgaria Estonia Poland Finland United Kingdom Austria Slovenia Belgium Portugal France Luxembourg Croatia Ireland Hungary Czech Republic Cyprus Spain Italy Slovakia Greece employment rates of women vary greatly. Still, as a general rule the employment rate of women with tertiary education level is higher that the values registered for women with medium or low level of education. Figure 9.8 Employment Rates of Women in 2015 by level of education 257 ISCED 5-8 ISCED 0-2 ISCED Source: EUROSTAT Database, Labour Force Survey. In 2015, the latest annual data available, almost 258 all EU Members States had employment rates of above 70% for women with tertiary education. But, for women with low level of education, employment rates were between 14.8% and 50.5%. A highly contrasting situation is registered in Lithuania which has one of the highest values in EU for the employment rate of women with tertiary education (87%) and, at the same time, the lowest value for employment rate of women with low education level (14.8%). This is an outlier, but the discrepancy between employment rates of women with tertiary education and those with a low level of education is a characteristic for all EU Member States. 257 Using the ISCED International Standard Classification of Education (ISCED 0-2 levels Less than primary, primary and lower secondary; ISCED 3-4 levels Upper secondary and post-secondary non-tertiary; ISCED 5-8 levels Short cycle tertiary, bachelor or equivalent, master or equivalent and doctoral or equivalent). 258 The only exception is Greece, with a level of 63.7%. 202

203 In many cases the CEACR comments addressed to EU Member States highlight the persisting horizontal segregation (concentration of women in certain sectors of the economy). Table 9.1: Proportion 259 of Women employed in specific economic activities in 2015 Human health and social work activities Wholesale and retail trade; repair of motor vehicles and motorcycles Education Manufacturing Professional, scientific and technical activities Public administration and defence; compulsory social security Accommodation and food service activities Denmark 30.3% 13.2% 11.9% 7.8% 4.9% 5.8% 5.1% Finland 29.7% 11.6% 10.5% 7.1% 6.0% 4.9% 5.1% Netherlands 27.9% 14.5% 9.0% 4.4% 6.0% 5.2% 4.7% Sweden 25.4% 10.9% 17.5% 5.2% 7.4% 7.7% 3.8% Belgium 24.9% 13.6% 14.1% 6.6% 4.9% 8.9% 3.4% France 24.4% 12.4% 10.8% 7.3% 5.5% 9.8% 3.8% Ireland 22.6% 14.8% 12.4% 7.3% 5.3% 5.5% 8.4% United Kingdom 22.2% 13.1% 16.0% 5.1% 6.5% 6.4% 5.9% Germany 21.1% 15.4% 10.0% 11.3% 5.8% 7.4% 4.7% Luxembourg 16.9% 7.4% 11.3% 2.3% 7.2% 9.6% 3.6% Austria 16.8% 17.5% 10.3% 9.2% 5.6% 7.0% 7.5% Portugal 15.6% 14.9% 13.5% 14.2% 4.9% 5.7% 6.9% Malta 15.0% 16.0% 17.1% 7.6% 6.0% 7.9% 5.9% Slovakia 14.2% 16.0% 13.2% 18.4% 4.1% 10.0% 6.6% Spain 13.8% 18.1% 9.7% 7.1% 5.3% 6.7% 9.5% Italy 13.4% 14.0% 12.1% 11.7% 6.8% 4.5% 7.1% Czech Republic 12.7% 15.3% 11.3% 21.4% 5.2% 7.2% 5.1% Croatia 11.6% 17.8% 12.7% 12.6% 4.3% 6.8% 8.2% Slovenia 11.4% 14.1% 15.2% 16.4% 5.1% 6.4% 6.5% Hungary 11.4% 15.6% 12.7% 17.0% 4.6% 11.2% 5.5% Lithuania 11.0% 18.7% 15.0% 14.1% 4.4% 7.0% 3.9% Poland 10.6% 18.0% 13.5% 14.0% 4.0% 7.5% 3.2% Latvia 10.3% 18.0% 15.2% 9.9% 5.2% 7.4% 4.7% Greece 9.4% 18.7% 13.1% 6.7% 6.4% 7.1% 9.6% Estonia 9.2% 16.1% 15.8% 15.2% 4.4% 7.4% 6.6% Bulgaria 8.9% 19.6% 10.8% 20.4% 4.5% 7.2% 6.7% Romania 8.7% 17.8% 7.6% 18.3% 2.9% 4.6% 3.1% Cyprus 7.4% 18.4% 12.6% 4.6% 8.5% 7.1% 8.3% Source: Authors calculations based on EUROSTAT Data 259 No. of Women Employed in the Specific Economic Activities divided by the Total No. of Women Employed 203

204 Looking at the 2015 figures on employment of women by economic activities we could easily identify the economic sector where women are overrepresented: Human health and social work activities countries with high proportion of women employed were Denmark (30.3%), Finland (29.7%) and Netherlands (27.9%); Education Sweden (17.5%), Malta (17.1%), United Kingdom(16.0%) and Estonia (15.8%); Wholesale and retail trade; repair of motor vehicles and motorcycles Bulgaria (19.6%), Greece (18.7%), Lithuania (18.7%), Cyprus (18.4%), Spain (18.1%) Poland (18.0%), Latvia (18.0%) and Romania (17.8%); Manufacturing Czech Republic (21.4%), Bulgaria (20.4%), Slovakia (18.4%) and Romania (18.3%). In most 260 EU Member States, more than 70% of all women employed work in the seven economic activities included in Table 9.2. Given the particularities of the economic structure in some EU Member States women employment proportions over 10% can be found also in: Agriculture, forestry and fishing (Romania 22.4%, Greece 11.6% and Poland 10.2%); Financial and insurance activities (Luxembourg 10.7%) and Activities of households as employers, undifferentiated goods and services-producing activities of households for own use (Cyprus 10.1%). Overall, in a large majority of EU Member States Construction, Manufacturing and Agriculture, forestry and fishing remain economic activities where the proportion of men employed is higher and Human health and social work activities and Education are women-dominated economic activities. Another important aspect of female participation in the labour market is the vertical segregation defined as the concentration or the overrepresentation of women in certain levels of the professional hierarchy (commonly known as the glass ceiling effect). From this perspective we could use as a proxy the proportion of women employed by occupations in order to identify the levels of occupational ladder where women are concentrated. In 2015 in all EU Member States Professionals and Service and sales workers occupations registered the highest 260 Luxembourg (58.2%), Romania (62.9%), Cyprus (66.9%) and Italy (69.6%) have lower values. 204

205 levels of women employed. Other occupations where women have a high proportion of employment were Technicians and associate professionals and Clerical support workers. Managers Table 9.2 Proportion 261 of Women employed by occupation in 2015 Professionals Technicians and associate professionals Clerical support workers Service and sales workers Skilled agricultural, forestry and fishery workers Craft and related trades workers Latvia 8.8% 23.3% 17.4% 8.2% 22.1% 2.6% 4.2% 1.4% 12.0% 0.0% United Kingdom 8.1% 25.1% 13.8% 14.5% 27.3% 0.4% 1.1% 1.3% 8.3% 0.1% Estonia 7.7% 26.9% 13.8% 8.9% 21.7% 1.2% 3.7% 6.2% 9.9% 0.0% Lithuania 6.9% 31.3% 11.6% 6.2% 19.8% 4.8% 5.9% 4.2% 9.1% 0.0% Slovenia 6.5% 29.0% 13.1% 9.4% 18.9% 3.4% 3.4% 5.9% 10.3% 0.1% Malta 6.3% 22.0% 14.8% 15.7% 29.2% 0.0% 1.0% 4.1% 7.0% 0.0% Ireland 6.1% 26.0% 11.4% 16.7% 28.7% 0.8% 1.6% 1.4% 7.3% 0.0% Belgium 5.8% 26.8% 14.9% 15.0% 19.4% 0.5% 1.3% 2.1% 14.3% 0.0% Poland 5.6% 26.7% 14.1% 8.4% 19.7% 9.6% 4.0% 3.2% 8.7% 0.0% Bulgaria 4.7% 24.4% 9.6% 9.4% 26.8% 2.8% 7.1% 6.7% 8.6% 0.0% France 4.6% 18.3% 21.0% 14.0% 21.3% 1.6% 1.9% 3.1% 13.9% 0.3% Sweden 4.6% 32.5% 16.6% 8.9% 27.9% 1.0% 1.2% 2.0% 5.3% 0.0% Portugal 4.4% 21.8% 10.6% 10.1% 22.6% 4.8% 3.9% 6.1% 15.8% 0.0% Hungary 4.2% 18.2% 19.8% 12.2% 20.5% 1.3% 3.6% 8.3% 11.7% 0.2% Czech Republic 3.7% 19.1% 16.8% 16.5% 22.7% 0.8% 4.4% 8.0% 7.8% 0.1% Netherlands 3.5% 25.9% 17.2% 12.6% 28.4% 0.8% 1.4% 1.0% 9.2% 0.1% Slovakia 3.4% 15.7% 17.4% 13.7% 26.2% 0.4% 4.4% 8.3% 10.4% 0.0% Spain 3.0% 21.5% 9.5% 14.9% 28.9% 1.0% 1.9% 2.0% 17.0% 0.1% Austria 2.9% 17.6% 19.3% 15.8% 25.3% 4.0% 2.6% 1.8% 10.7% 0.0% Germany 2.9% 16.6% 27.1% 17.9% 19.4% 0.6% 3.0% 1.9% 10.5% 0.1% Croatia 2.5% 23.3% 14.0% 13.4% 25.3% 6.3% 2.0% 5.2% 8.0% 0.0% Italy 2.4% 18.4% 16.2% 18.5% 24.6% 1.2% 3.1% 3.0% 12.5% 0.0% Finland 2.2% 24.0% 22.2% 9.3% 27.9% 2.3% 1.8% 2.6% 7.7% 0.0% Greece 1.9% 22.7% 9.3% 14.3% 26.5% 11.8% 2.4% 1.2% 9.2% 0.5% Cyprus 1.7% 21.5% 11.5% 16.9% 23.5% 0.9% 1.3% 0.9% 21.7% 0.3% Romania 1.6% 19.2% 7.3% 6.3% 20.4% 22.4% 7.5% 5.7% 9.5% 0.0% Denmark 1.4% 30.3% 15.5% 12.0% 26.8% 0.6% 1.1% 1.7% 10.6% 0.0% Luxembourg 0.8% 38.6% 21.2% 9.7% 14.8% 0.9% 0.5% 0.4% 13.0% 0.0% Source: Team s calculations based on EUROSTAT Data In specific Member States women have an above 10% proportion in occupations such as: Skilled agricultural, forestry and fishery workers Romania 22.4% and Greece 11.4%; Elementary occupations Cyprus 21.7%, Spain 17.0%, Portugal 15.8%, Belgium 14.3%, France 13.9%, Luxembourg 13%, Italy 12.5%, Latvia 12%, Hungary 11.7%, Austria 10.7%, Denmark 10.6%, Germany 10.5%, Slovakia10.4% and Slovenia 10.3%. Plant and machine operators and assemblers Elementary occupations Armed forces occupations 261 No. of Women Employed in the Occupation divided by the Total No. of Women Employed 205

206 Greece Spain Croatia Cyprus Slovakia Portugal Italy Slovenia France Finland Latvia Bulgaria Lithuania Belgium Ireland Poland Luxembourg Netherlands Sweden Hungary Denmark Czech Republic Estonia Romania Austria Malta United Kingdom Germany Regarding the proportion of women in Managers occupations, countries like Latvia 8.8%, United Kingdom 8.1%, Estonia 7.7%, Lithuania 6.9%, Slovenia 6.5%, Malta 6.3%, Ireland 6.1%, Belgium 5.8% and Poland 5.6% register high proportions and Luxembourg 0.8%, Denmark 1.4%, Romania 1.6%, Cyprus 1.7% and Greece 1.9% have low levels of women employed in the occupations included in that category. For most EU Member States the unemployment rate of women in 2015 was below 10% with lowest levels registered in Germany (4.2%), United Kingdom (5.1%) and Malta (5.8%), Austria (5.6%) and Romania (5.8%).Despite this, countries like Greece (28.9%), Spain (23.6%), Croatia (17.0%), Cyprus (14.8%), Slovakia (12.9%), Portugal (12.8%) and Italy (12.7%) register high absolute unemployment rates levels for women. Figure 9.9 Unemployment Rates 262 in EU Member States in Men 2015 Women 2015 Total Source: EUROSTAT Database, Labour Force Survey. As for the gender gap in unemployment (the difference between the unemployment of women and men) the highest value was registered in Greece (7.1 pp), followed by Spain (2.8 pp) and Slovakia 262 International Labour Organisation methodology (population 15+) 206

207 (2.6 pp). In Ireland, Latvia and Lithuania the unemployment rate of women in 2015 was much lower than the level registered for men. Although at the EU level, efforts to promote gender equality in pay dates back to and have been an ever present issue throughout the development process of European Union, the available statistics capture how persistent the phenomenon of gender discrimination remains. Looking at the Gender Pay Gap (unadjusted form) 264, information collected in several EU Member States through the Structure of Earnings Survey clearly show the persistence of the pay gap between women and men 265, especially in those economic activities where women are overrepresented. Also, when we analyse only the Commercial Private Sector Economy 266, the gender pay differences remain high in countries like Estonia, Germany, Cyprus, Austria and Spain. 263 Article 119 the Treaty establishing the European Economic Community (EEC) 264 The unadjusted gender pay gap (GPG) represents the difference between average gross hourly earnings of male paid employees and of female paid employees as a percentage of average gross hourly earnings of male paid employees. More info and statistics available at: Annex V includes the information on all economic activities surveyed. 266 All economic activities, except Public administration and defence, Education, Human health and social work activities, Arts, entertainment and recreation and Other service activities 207

208 Table 9.3 Gender Pay Gap in 2014 Human health and social work activities Wholesale and retail trade; repair of motor vehicles and motorcycles Education Manufacturing Professional, scientific and technical activities Public administration and defence; compulsory social security Accommodation and food service activities Business economy* Ireland : : : : : : : : Greece : : : : : : : : Austria : : : : : : : 24.3 Cyprus Bulgaria Czech Republic Portugal : United Kingdom Italy : : 13.2 Croatia Finland Estonia Germany Slovakia Spain Lithuania Netherlands France Poland Hungary Latvia : Slovenia Sweden Romania Denmark Belgium : Malta : Luxembourg : Source: EUROSTAT Database, Gender pay gap in unadjusted form - structure of earnings survey methodology 9.7. Gender Equality and Sex discrimination in the Republic of Korea In section 8.2, the Republic of Korea s position has been noted as one of the highest gender gaps of the countries considered. We note that in many cases this is largely attributable to one factor the wage gap. According to the OECD report summarised above (issued in 2014 with data based on 2012), Republic of Korea s gender wage gap was 37.4% - as shown below, the widest among the world s advanced countries. Perhaps more importantly, the wage gap rate has changed little between , despite many more women in more diverse occupations. Critics have argued that as with the Netherlands, part time work exacerbates this differential. Representations have been made to the ILO by Korean organised labour representatives that the nature of the current Korean law on permanent vs all other types of employment (discussed in the next chapter) further 208

209 works against women s wages. Others have pointed out that the seniority wage system itself tilts wages against women, since women rarely enjoy senior positions. Figure 9.10: Gender Wage Gap in the Republic of Korea Source: OECD Database This argument is supported by the fact that the labour force participation rate of women in their twenties is actually higher than that of men in the same age group. However, the labour force participation rate of women in their thirties is only 60% of the rate for men, indicating that marriage, pregnancy, and childcare duties are preventing women from continuing to work. Moreover, fewer Korean women have been able to advance into management positions compared to women in other countries. It is important to note that there is a lack of time series data to compare this situation with the more distant past, and that considerable progress was made Confucian principles set out different duties for men and women, and these principles were carried over into the early workplace which, given the Republic of Korea s rapid economic development, was comparatively recently. It is only really from the late 1990s that the principles of gender equality were first practiced, and the first women managers appointed (although, through the death of their owners, one or two large enterprises saw women become chairpersons in the 1980s for example Aekyung). An interesting example of the kinds of issues which had to be contested to move towards equality under the Korean Constitution (where articles protect women) is given in the case of the discriminatory treatment given to veterans in employment, which was successfully challenged as 209

210 early as 1999 and represents the way in which the Korean Constitutional Court can act as the key arbiter in highly technical issues, while generally interpreting the Constitution without regard to powerful interest groups within society in this case veterans. In the landmark case of Constitutional complaint against Article 8(1) of the Support for Discharged Soldiers Act [Constitutional Court of Korea (23 December 1999) 98 Hun-Ma 363], the Constitutional Court ruled that it is discriminatory against women to give extra points to discharged soldiers in public servant employment (points that are translated into passing the civil service exam and gaining jobs in the civil service) which were contrary to Article 11 of the Constitution. 267 The veterans extra point system poses an obstacle for many women s hope for civil service positions, and gives an additional 3% or 5% in each subject tested in a hotly-contested civil service examination, where success or failure is decided by decimal points and for which the cut-off is usually above 80%, thereby exerting a decisive influence on the results of the exam. This is tantamount to excluding the non-beneficiaries of the veteran extra point system from civil service hirings below Grade 6. Veterans can receive such benefits an unlimited number of times, and for each veteran, several non-veterans lose their own opportunity. In comparison to the weight of the public interest being addressed, the inequality due to such differential treatment is serious. The veteran extra point system is disproportional. Therefore, the veteran extra point system discriminates against women and non-veteran males, in favour of veterans, through unjust and overly unequal methods, in violation of Article 11 of the Constitution and the petitioners right of equality National Human Rights Commission Act The National Human Rights Commission of Korea (NHRCK) was established by the National Human Rights Commission Act to deal with affairs to protect and improve human rights (Article 3(1)). The Commission can independently deal with the matters which fall under its jurisdiction (Article 3(2)), 267 The Court reasoned as follows:korean men need to enroll in mandatory military service pursuant to Article 39(1) of the Constitution, which imposes a duty of national defense on citizens.therefore, while an extremely small minority of women can become veterans, almost all veterans are men. The veterans extra point system effectively constituted discrimination based on gender. 210

211 meaning the Commission can carry out independent investigations and provide remedies with respect to discriminatory acts (Article 19). Since obtaining a remedy through normal judicial procedures takes considerable time and cost, people can rectify acts of The National Human Rights Commission Act also gave strong legal teeth to antidiscrimination in an alternative redress system to the Courts. This is treated in extreme detail in the legal description and gives a clear and concise definition of sexual discrimination and of sexual harassment, as follows: (i) An act of favorably treating, excluding, discriminating against or unfavorably treating a particular person regarding employment (including recruitment, appointment, education, posting, promotion, payment of wage and any other money or valuables, financing, age limit, retirement, dismissal, etc.); (ii) An act of favourably treating, excluding, discriminating against or unfavourably treating a particular person regarding the supply or use of goods, services, means of transportation, commercial facilities, land and residential facilities; (iii) An act of favourably treating, excluding, discriminating against or unfavourably treating a particular person regarding education and training at educational facilities or institutions for workplace skill development, or the use thereof; and (iv) An act of sexual harassment (referring to making people feel sexually humiliated or loathsome in business, employment or other settings or giving disadvantage in employment on the pretext of disobedience to sexual comments or other demands by a working person, an employer or an employee of a public agency (referring to State agencies, local governments, various levels of schools established under Article 2 of the Elementary and Secondary Education Act, Article 2 of the Higher Education Act and other Acts, and agencies affiliated with public services pursuant to Article 3-2(1) of the Public Service Ethics Act) who takes advantage of their superior position or sexual comments, etc. with regard to their duties, etc.). 211

212 Equal Employment Opportunity and Work-Family Balance Assistance Act As noted in the remarks on the weighting of the Glass Ceiling Index, if the wage gap is given a lower weighting, other positive proactive features of the Korean system move Republic of Korea up to the position it holds in the Gender Inequality Index, including the Equal Employment Opportunity Act and the Work-Family Balance Assistance Act, which was enacted pursuant to Article 32(4) of the Constitution. The purpose of the Equal Employment Opportunity Act is to contribute to realizing equal employment for both genders by guaranteeing equal opportunities and treatment in employment between men and women in accordance with the principle of equality proclaimed in the Constitution of the Republic of Korea, by protecting motherhood, and by promoting the employment of women. In addition, the Act aims to improving the quality of all people s lives by promoting work-family balance of workers (Article 2). The Equal Employment Opportunity Act provides for a ban on discrimination in the following areas: (i) recruitment and work assignment (Section 7); (ii) pay and other benefits besides pay in a strict sense (Section 8, 9); (iii) training, assignment, and promotions (Section 10); and (iv) retirement and termination of employment (Section 11). The Act also contains penalty provisions (Chapter 6), by which any violation of the above provisions are subject to criminal prosecution. Furthermore, the Act also prohibits sexual harassment in the work place and provides preventative remedies for same (Sections 12 to 14). Article 2 of the Equal Employment Opportunity Act stipulates that the term discrimination arises when an employer discriminates against a worker in employment or working conditions, or takes any other disadvantageous measures without any justifiable reason, on grounds of gender, marriage, status within family, pregnancy or childbirth, etc. Article 2 also lists indirect discrimination as a form of discrimination regulated under this Act, including in the definition [ ] where, even if the employer equally applies employment or working conditions, the number of men or women capable of satisfying such conditions is remarkably fewer in comparison with the opposite gender, thus putting the opposite gender at a disadvantage, and the said conditions may not be attested to be justifiable. There is no indirect discrimination in jobs where (i) a specific gender is inevitably requested in view of the characteristics of the relevant duties; (ii) measures are 212

213 taken for protecting motherhood, such as pregnancy, childbirth, and breastfeeding; and (iii) proactive employment improvement measures are taken under this Act or other Acts. With regard to equal work and equal pay, the Act specifies: The criteria for work of equal value shall be skills, effort, responsibility, and working conditions (etc.), required to perform the work. And in setting the criteria, an employer shall listen to opinions of the member representing the workers at the Labour-Management Council. 268 These criteria were further explained in a major court decision on this case. The decision defined each term as follows: Skills include degrees from higher educational institutions as well as techniques acquired through previous experience. Effort refers to such factors as the intensity of the work, and the physical and mental effort required to accomplish tasks under time constraints. Responsibility refers to the scope of the job, its complexity, and the extent to which the employer is dependent on the employee. Working Conditions means such issues as noise, exposure to physical or chemical threats, segregation of work, and the temperature of the work place. [Supreme Court of Korea (14 March 2003) 2002 Do 3883] One other example of using the courts to contest indirect discrimination is the Allianz Insurance Married Couple case, where the company practically forced one of the spouses in a married couple working in the same company (Allianz) to apply for layoff. The court found a lack of justifiable grounds for employment termination, but did not conclude the company committed sex discrimination, since the male member of the couple could voluntarily choose to quit instead of his female counterpart. The fact that women are more likely to be laid off in such circumstances is not sufficient to prove indirect discrimination. [Supreme Court of Korea (28 July 2006) 2006 Du3476] Another leading case also relates to unjust layoffs of women. In this case, the company opened a new division and transferred all female workers within a certain rank of office workers to the new division, and prohibited such workers from moving to another division or from being promoted to the next rank. The court found this to constitute a violation of the Labor Standards Act as well as the Constitution, which places a ban on sex discrimination in connection to employment.[supreme Court of Korea (26 July 2002) 2002 Da 10202] 268 This is a body that companies are required to establish in order to facilitate labour-management discussions and other matters. 213

214 Maternity Protection Act According to the OECD, Republic of Korea is still falling behind from the OECD average in number of weeks provided to female workers to utilize as maternity leave. Figure 9.11 Maternity Leave in Source: OECD Database As of 2013, the average Korean woman gave birth to babies in her lifetime, ranking the country nearly last in fertility worldwide. According to the U.S. Central Intelligence Agency, only Hong Kong, Taiwan, Macau, and Singapore have lower fertility rates than Republic of Korea. The following provisions were adopted into the Labor Standards Act, the Equal Employment Opportunity and Work-Family Balance Assistance Act, and the Employment Insurance Act, in order to protect motherhood and encourage childbirth: Protection of maternal employees ; Employment in hazardous/dangerous work prohibited; Restrictions on extended work, night work, and holiday work; Protection leave for maternal employees; Paternity leave; and Guaranteed nursing hours

215 9.8. Sexual Harassment in EU Member States and Republic of Korea Sexual harassment continues to be a problem in all the countries of study, partly because men have often failed to understand that there have been rapid changes in attitudes to which they have not fully adjusted. Of all the types of discrimination, sexual violence to co-workers is one of the most pernicious, because the victim is least likely to complain and if she or he does, usually the person suffers from further victimization as a result of speaking out. The enterprise involved is also likely to suffer a loss of productivity as a result. The NHRCK act has a well written detailed definition of sexual harassment. Recent surveys suggest that the incidence of extreme sexual harassment is higher in Europe (at 40% of women reporting having experienced it) than Asia (30%) 270. In 2016, French women in senior positions have spoken out about the continuance of certain behaviour by male colleagues which is unacceptable. Seventeen French women who have served as cabinet ministers in both socialist and center-right governments have signed a statement entitled An End to Impunity. The women calling for the end of immunity, systemic sexism, and sexual harassment speak out against a culture of harassment, arguing against a culture of impunity. Published in May 2016 by Le Journal du Dimanche weekly, the statement calls for the world of politics to serve as an example against sexism and an end to impunity. It s not women who have to adapt to these [male dominated] environments, it is the behaviour of some men that needs to change reads their statement. The initiative aims at encouraging all victims of sexual harassment and sexual assault to publicly talk about it and to complain. The women suggest that the law is on the side of women, but is not adequately enforced. Few women complain and very few complaints result in convictions, they suggest. The only legal intervention the women suggest is to remove the statute of limitations for sexual assault cases Powerful French Women speak out against Sexual Harassment. 215

216 This public stand is a reminder that sexual harassment is not a simple issue. In a major study by IPSOS, both Sweden and France received a score of 3 representing an estimated 3% of women experienced sexual harassment at work compared with 10 in Republic of Korea. The questionnaire used only one of three possible measures of harassment, physical abuse, whereas the French protest was against mental abuse. 272 In the early 1990s, the local labour offices of Republic of Korea provided education to the HR personnel of companies, setting out what constitutes sexual harassment and ordering all HR members to hold classes on this matter. This illustrates one of the ways that the Korean system can educate the workforce and employers on such issues. The Korean National Assembly amended the Sexual Equality Employment Act in February 1998, compelling employers to provide preventive education in order to prevent sexual harassment and secure a safe environment for female workers in the work place. And since 22 June 2008, online education via the internet has been included as one of the means of such preventive education, reflecting changes in the work place environment. In this regard, if an employer provides sexual harassment prevention education over the Internet, it is deemed to have provide such education only when the online education fulfils the following functions that can check the proper delivery of education contents to participants: checking the progress for each unit, confirming education contents, and providing Q&A sessions. If an employer provides sexual harassment prevention education by simply distributing, sending by or posting on bulletin boards education materials so that it is difficult to check whether the education contents are properly delivered to participants, then it is deemed to not have provided such education. 273 A recent survey of Korean women by the NHRCK was conducted in 2015, concentrating on physical abuse. The NHRCK recommended that the government specify rules that prohibit disadvantaging victims of sexual harassment, in the Equal Employment Opportunity and Work-Family Balance Assistant Act. In October 2016, pursuant to the recommendation, the government submitted a legislative amendment bill to the National Assembly, intended to improve the protection of the victims IPSOS (2010) Is an employer allowed to give sexual harassment education over the internet? 274 ( 75&m_id3=&m_id4=&flag=VIEW&SEQ_ID=611472). 216

217 The NHRCK carried out research in 2015 to grasp situations concerning the secondary damage suffered by victims of sexual harassment and enhance relief measures. It polled 450 workers and had in-depth interviews with victims and officials responsible for settling grievances resulting from sexual harassment at public institutions and private firms. As a result, 40.2 percent of respondents said they would "not raise an issue" if they are sexually harassed. As for the reason, 51 percent cited "unsavoury rumours," followed by "disadvantage in work" (36 percent), "stress from handling procedure" (34 percent) and "fear of confronting perpetrators" (25 percent). When the victims talked about secondary damage to people around them, 22 percent of respondents were told to "suffer patiently," 12.4 percent heard hints of disadvantageous treatment or psychological discouragement, and in 11.3 percent of cases, co-workers avoided being involved, telling the victims, "You are on your own." Secondary damage occurred mainly when the victims made it public among colleagues (32.4 percent), when they formally filed a complaint (28.2 percent) and when probes began or conclusions were reached (27.1 percent). People who inflicted secondary damage were perpetrators, superiors and colleagues, the survey showed. As to why secondary damage occurred, 20.4 percent pointed to insufficient legal punishment of corporate managers' inappropriate handling of incidents, and lack of legal and institutional support for the protection of victims (19.8 percent). 275 According to the UN s fast facts about violence to women, the EU has a higher rate of sexual harassment that Republic of Korea, Japan and other Asian countries: Between 40 and 50 percent of women in European Union countries experience unwanted sexual advances, physical contact or other forms of sexual harassment at work. Across Asia, studies in Japan, Malaysia, the Philippines and Republic of Korea show that 30 to 40 percent of women suffer workplace sexual harassment

218 9.9. Conclusions and Policy Implications Gender equality can be a simple issue or a complex issue weighing many major or minor alternative social values against gender equality. In the 21st century there seems a clear consensus that this is an overriding value where the government, employers, organized labour, and NGOs need to consider where education can accelerate improvements in this situation. The fact that surveys suggest the EU workplace is less welcoming than that of the Republic of Korea suggests that the Republic of Korea has achieved results in directing employer responsibility to education. This theme will be extended in Chapters 11 and 12. The study has found that discrimination against women continues, wrong in itself from the standard of human rights, but also a serious economic and social issue since in both the EU and the Republic of Korea almost 20% of households are headed by women. This means that the entire family suffers indirect discrimination is the woman is paid less than a male. 277 Successive directives from the EU and laws in the Republic of Korea have not ensured equality and as noted above have not greatly shifted the wage gap in the Republic of Korea. The policy implication is that insufficient measures have been taken to resolve this issue. We note some examples of good practice in the case of gender discrimination in a later chapter, but believe these are not sufficient. Governments and international bodies should not rely on indexes based on a complex number of indicators with unclear weighting but concentrate on a few key indicators which can be fairly measured and monitored for improvement. From a workplace point of view, which is the mandate of this study, we suggest a dissection of the gender pay gap to account for different types of employment and employment contract, to identify the worst cases where the gap occurs and take positive action. We also consider that as the existence of the wage gap is a failure of the state to modify social and market behaviour, the state should compensate working women who are heads of households with tax or social security compensation equal to the size of the wage gap. The existence of such payments would draw the attention of national bodies democratic and administrative to the need for corrective action and the cost of gender discrimination in each economy could be measured explicitly. 277 The research team was unable to find statistics for the number of working households headed by women, and regard this as an important piece of data for future anti-discrimination studies. 218

219 10. Workplace issues and Non Standard Employment Basic Issues In February 2015, the International Labour Organization held a Tripartite Meeting of Experts on Non-Standard Forms of Employment that assembled experts to discuss over four days the challenges for the decent work agenda that non-standard forms of employment can generate. The conclusions of the meeting called on Member States, employers and workers organizations to devise policy solutions to address decent work deficits associated with non-standard forms of employment, so that all workers irrespective of their employment arrangement could benefit from decent work. Specifically, governments and the social partners were requested to work together to implement measures to address inadequate working conditions; support effective labour market transitions; promote equality and non-discrimination; ensure adequate social security coverage for all; promote safe and healthy workplaces; ensure freedom of association and collective bargaining rights; improve labour inspection and address highly insecure forms of employment that do not respect fundamental rights at work. 278 Following on from this meeting, and as the result of concerns about the rise of non-standard employment globally, the ILO conducted a major study on Non-Standard Employment Around the World. Figure 10.1 shows how the ILO categorises the different types of Non Standard Employment in the 2016 report, and the main distinguishing characteristics. 279 The ILO classifies those with fixed term contracts as temporary workers, those who work less than the standard hours as part time or on call workers; those employed by one party but working in another place as having a multiparty employment relationship; and also identifies a further group of self employed who have a dependent relationship with one employer which the report describes as disguised or dependent self employment. It is self-evident that in each category there is a potential for discriminatory behaviour by employers with regard to wages or benefits to occur. 278 For more details see en/index.htm ion/wcms_ pdf 219

220 Diagram 10.1 The Different Types of Non-Standard Employment as seen by the ILO Source: ILO, Non-Standard Employment around the World 2016 In both the EU and the Republic of Korea, basic employment law assumes that employment is for an indefinite period. Therefore the issue of irregular work has been the subject of frequent debate and regulation. Issues related to work contracts have regularly been raised at the ILO by the Korean worker side, and rarely by the worker side of any EU member state. 280 The reason appears to be 280 Mention of the worker side comments on this issue can be found in the majority of the years for which observations or Direct Requests were made with respect to the Republic of Korea. By contrast the team could find no such case amongst the EU member states. The ILO did observe with relation to the Netherlands that the government should give more details on part time workers, ILO Direct Request of 2007 available at In the case of Finland the ILO CEACR requested the government to ensure protection against 220

221 that a series of tripartite agreements were made in the EU in the late 1990s which were then used to create EU directives. These directives have been steadily enforced by the CJEU, clarifying the definitions and difficult cases. 281 The nearest equivalent legislation in Korea, the Act on the Protection (etc.) of Fixed-Term and Part-Time Workers, 2006, 282 has been cited to the ILO with dissatisfaction by the worker side since Irregular work in the EU Fixed term contracts The protection against discrimination of fixed term workers in the EU Members States is ensured through national legislation. The national laws need to be in line with the EU framework which was established through a Directive that enforces an agreement reached at the EU level by the social partners (management and trade unions). The Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by the European Trade Union Confederation (ETUC), Union of Industrial and Employers' Confederations of Europe (UNICE) 283 and the European Centre of Employers and Enterprises providing Public Services and Services of general interest (CEEP) includes the non-discrimination of fixed term workers compared to workers on an open ended contract. discrimination on the ground of pregnancy and against employees taking parental leave, including in the context of fixed-term employment relationships, Direct Request 2010 available at For Slovenia CEACR asked the Government to indicate the concrete measures taken or envisaged to address the underlying reasons for the over-representation of women in part-time employment, Direct Request 2011 available at The cases are to numerous to mention but the following two cases are considered representative Case C-157/11 Giuseppe Sibilio v Comune di Afragola [2012] published in the electronic Reports of cases (Sibilio) and C-393/10 Dermod Patrick O Brien v Ministry of Justice [2012] published in the electronic Reports of cases (O Brien). 282 English translation of this legislation including amendments up to 2013, is available here: /KOR79807%20Eng% pdf 221

222 ETUC, UNICE and CEEP. The preamble of the legislation recognizes that the Member States failed to reach an agreement at Council level on promoting a directive related to fixed term workers and that the social partners had formed the agreement. The Directive 1999/70/EC was developed to put into effect the framework agreement on fixedterm contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) and Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with [ ], or shall ensure that,[ ] management and labour have introduced the necessary measures by agreement. The provision of non discrimination are included in the Clause 4 of the agreement which states: 1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply. 3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice. 4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds. 284 Therefore Directive 1999/70/EC and the agreement on fixed-term work forbid employers to treat fixed-term workers less favourably than permanent workers, unless different treatment can be justified on objective grounds. Still, one of the shortcomings of this act is that it only covers direct discrimination, disregarding indirect discrimination or other forms of discrimination

223 A major problem that was addressed by a pivotal point of the agreement included in the Directive 1999/70/EC is Clause 5 that aims to prevent abuse of successive fixed-term contracts between the same employer and employee for the same work. 285 Reports analysing the transposition of the Directive 1999/70/EC in the legislation of EU Member States have concluded that it was correctly transposed by all Members States, although some gaps 286 were identified. Each nation while implementing the legislation was to define which occupations might have successive fixed term contracts and for which reasons. 287 Relevant cases in this regard include the ruling of the Court of Justice of the European Union in Case C 38/13 Małgorzata Nierodzik vs. Samodzielny Publiczny Psychiatryczny Zakład Opieki Zdrowotnej im. dr. Stanisława Deresza w Choroszczy which identified that the Polish Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringes the prohibition against treating fixed-term employees less favourably than permanent employees if the situations of those employees are comparable. The Judgment of the Court of Justice of the European Union (Second Chamber) on 13 September 2007 in Case C-307/05 Yolanda Del Cerro Alonso vs. Osakidetza-Servicio Vasco de Salud the concept employment conditions referred to in clause 4(1) [ ] must be interpreted as meaning that it can act as a basis for a claim such as that at issue in the main proceedings, which seeks the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff. Thus the equality principle is not only restricted to salary payments it also includes bonuses or other allowances granted by the national legislation. As a result of the ruling, the Spanish legislation for civil servants in the area was changed to prohibit discrimination. 285 National courts recognized this even in industries such as football where fixed term contracts are common. This concerns a ruling by a German Court in 2015 that Mainz Football Club broke the law prohibiting successive fixed term contracts with respect to one of they players. 286 Implementation report Directive 1999/70/EC in EU Member States: Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia and Implementation Report for Romania. Available at: Philippa Watson, EU Social and Employment Law (2 nd edn, Oxford University Press 2014) p 241; see also case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 (Adeneler), para

224 Other cases where CEJU ruled that the equality of treatment must prevail with regard to all aspects of the employment contract 288 were: Case C-486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol 289 ; C 444/09 and C 456/09 Rosa María Gavieiro Gavieiro (C 444/09), Ana María Iglesias Torres (C 456/09) vs. Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia 290 ; Case C 268/06 Impact vs. several Ministers from Ireland 291. Taking into account the increase in use of fixed term contract there is a clear need to research more on the way the provisions of Directive 1999/70/EC are enforced at Member States level and to identify if fixed term workers are properly protected against discrimination Part time workers As for part time workers the legislation enacted at EU level to protect them against discrimination is the Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC and Council Directive 98/23/EC of 7 April 1998 on the extension of Directive 97/81/EC on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC to the United Kingdom of Great Britain and Northern Ireland. These directives preclude the one for fixed term workers and were adopted in a similar unusual way recognizing the failure of EU Members States to reach an agreement on the issue at the time of their adoption. The value of EU directives in protecting part time workers and agency pean Trade Union Institute, =en&mode=req&dir=&occ=first&part=1&cid= ng=en&mode=lst&dir=&occ=first&part=1&cid= ng=en&mode=lst&dir=&occ=first&part=1&cid= Various issues in different EU countries were noted including temporary workers in the UK and problems with German department stores, but none of these were brought to the ILO under convention C A careful study of sex discrimination in part time work was made in equality/files/your_rights/sex_discrimination_in_relation_to_part_time_and_fixed_term_final_e n.pdf. 224

225 workers has been pointed out in the context of the future negative impact of Brexit on the rights and protection of British workers. 293 In the case of Directive 97/81/EC the Clause 4 of the agreement establishes the protection against discrimination: 1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply. 3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice. 4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause The EU country with the highest part-time workforce is the Netherlands. In the Netherlands the first part-time economy in the world nearly half of wage employees work part time. In 2014, this was the case for 65 per cent of women and 28 per cent of men. Part-time work is not limited to marginal jobs but is found in nearly all occupations. Most part-time employees are on permanent employment contracts, and the average wage gap between full-timers and part-timers is negligible or non-existent. Several studies have shown that Dutch women are not only satisfied with parttime work, but also prefer it over full time, and in some instances wish to work fewer hours. How did the Netherlands arrive at this model? The Netherlands grew into a part-time economy steadily but surely over the past 50 years, buoyed by the growing participation of women in the

226 labour market, and the use of part-time work by employers as an alternative to union demands for a collective reduction of working hours, and to fill the gap between shorter working hours and the longer operating time required to respond to increased demand. In the Wassenaar Agreement, concluded in 1982, unions agreed to moderate their wage demands in exchange for policies to combat unemployment, including the development of part-time employment. The International Labour Organization describes the Wassenaar as "a groundbreaking agreement, setting the tone for later social pacts in many European countries" 295 Policy actions that were instituted to support good-quality part-time employment included the diffusion of part-time work into higher occupational levels and organizational hierarchies and, most importantly, the implementation of the principle of equal treatment for part-time workers one year before the adoption of the EU Directive on Part-Time Work 296. In 2000, the Working Hours Adjustment Act, adopted in the framework of the work and care policy, allowed employees to request, under certain circumstances, a reduction (or an increase) in their working hours, with employers allowed to refute such requests only on the grounds of specific conflicting business interests. 297 Similar to the case if fixed term workers, the part-time workers are not protected under the Directive against indirect discrimination or other forms of discrimination, only for direct discrimination. Another issue that poses challenges in raising complaints and in applying the provisions included in the Fixed term and Part-time directives at national level is the use of a comparator (in many cases difficult to identify), on the other hand studies recognize that the Court of Justice of the European Union has an expansive interpretation of equal treatment 298 principle. 295 "Netherlands - Social Pacts in Eurpore - Information Resources - Social Dialogue, Labour Law and Labour Administration Department" 296 Source: C. Fagan et al.: In search of good quality part-time employment, Conditions of Work and Employment Series No. 43 (Geneva, ILO, 2014) A.J. Both and J.C. Van Ours: Part-time jobs: What women want?, in Journal of Population Economics, 2013, Vol. 26, No. 1, pp ; and J. Visser: The first part-time economy in the world: A model to be followed?, in Journal of European Social Policy, 2002, Vol. 12, No. 1, pp Visser, 2002, op. cit Since the adoption of the Flexible Working Act in 2015, employees can also request changes to their schedules and place of work 298 Caroline de la Porte and Patrick Emmenegger, The Court of Justice of the European Union and fixed-term workers: still fixed, but at least equal, Working Paper , European Trade Union Institute,

227 Temporary Agency Workers (TAW) Another relevant issue is the situation of temporary agency workers defined as a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction. The protection of these workers against discrimination was included in the Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. Article 5 of Directive 2008/104/EC includes the principle of equal treatment: 1. The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job. For the purposes of the application of the first subparagraph, the rules in force in the user undertaking on: (a) protection of pregnant women and nursing mothers and protection of children and young people; and (b) equal treatment for men and women and any action to combat any discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation; must be complied with as established by legislation, regulations, administrative provisions, collective agreements and/or any other general provisions Irregular Work in Korea As in the EU, the Korean labour law assumes that employment is indefinite and where this is not the case protective legislation is required. Under the Korean labour law, once an employee has passed his/her probationary period in an indefinite contract, it is extremely difficult to terminate the employment relationship (except on a voluntary basis) for incompetence

228 The recent ILO study Republic of Korea: Development of National Employment Policies through Two Economic Crises, non-regular workers include fixed term, part time and dispatched workers, subcontracted workers and independent self-employed workers, domestic workers and daily workers. 300 While this follows the National Statistics of Korea categorization of labour, according to the definition defined and agreed by the Korea Tripartite Commission in 2002, non-regular workers consist of temporary workers (or fixed-term workers), part-time workers, and dispatched (or agency) workers, subcontract workers and workers who are on call. 301 The Tripartite Commission definition is used in this analysis. The Korean issue of non-regular workers, fixedterm (temporary) workers, temporary agency (dispatched) workers and part-time workers was created in part by a series of laws, principally part-time workers and fixed-term workers are defined in the Act on the Protection, etc. of Fixed-term and Part-time Workers (APFPW) and temporary agency workers is defined in the Act on the Protection, etc. of Temporary Agency Workers. (APTAW) According to the Act on the Protection (etc.) of Fixed-Term and Part-Time Workers, a fixed-term worker means a worker who has signed an employment contract whose period is fixed, and a part-time worker means a part-time worker defined in Article 2 of the Labour Standards Act. Under the Act on the Protection (etc.) of Temporary Agency Workers, a temporary agency worker means a person employed by a temporary work agency to be assigned to work and under the direction and supervision of a user company. The above-mentioned Acts also define discriminatory treatment, and provides for corrective redress. In 2014, Korea adopted the concept of punitive damages in the Act on the Protection (etc.) of Fixed-Term and Part-Time Workers and the Act on the Protection (etc.) of Temporary Agency Workers. 300 ILO Republic of Korea Development of National Employment Policies through Two Economic Crises. Lessons from its Experiences, 2012, Appendix B. 301 The defintion of same by the Korean Tripartite Commission in 2002 is the most offical definition in Korea. See the reference below and the document attached in with the website &menu_idx=2102&tabCnt=0&per_menu_idx=&submenu_idx=&data_idx=BD &membe rauth=y&stype= 228

229 Act on the Protection (etc.) of Fixed-Term and Part-Time Workers Article 2 discriminatory treatment means unfavourable treatment in terms of any of the following items without any justifiable grounds. (a) Wages under Article 2 (1) 5 of the Labour Standards Act; (b) Incentive pay on a regular basis such as regular bonuses and holiday bonuses; (c) Performance based bonuses; (d) Other matters concerning working conditions and welfare. Article 8 (1) No employer shall give discriminatory treatment to any fixed-term worker on the ground of his/her employment status compared with other workers engaged in the same or similar kinds of work on a non-fixed term employment contract at the business or workplace concerned. (2) No employer shall give discriminatory treatment to any part-time worker on the ground of his/her employment status compared with full-time workers engaged in the same or similar kinds of work at the business or workplace concerned. Article 9 (1) Any fixed-term or part-time worker who has received discriminatory treatment may file a request for its correction with The Labour Relations Commission under Article 1 of The Labour Relations Commission Act (hereinafter referred to as Labour Relations Commission ); provided, however, that this shall not apply where six months have passed since such discriminatory treatment occurred (in cases of continuous discriminatory treatment, since such treatment ended). Article 13 (2) The monetary compensation under paragraph (1) shall be determined based on the amount of damages sustained by any fixed-term worker or any part-time workers as a result of discriminatory treatment; provided, however, that the Labour Relations Commission may order monetary compensation within the scope not exceeding three times the amount of the damages in cases where clear wilfulness is recognized in the discriminatory treatment by an employer or the discriminatory treatment occurs repeatedly. Article

230 (1) Where any employer gives discriminatory treatment in violation of Article 8, the Minister of Employment and LaborLabour may request the correction thereof. Act on the Protection (etc.) of Temporary Agency Workers Article 2 discriminatory treatment means imposing unfavourable conditions on the following without just cause: (a) A wage defined in Article 2 (1) 5 of the Labour Standards Act; (b) A bonus provided regularly, such as a regular bonus and holiday bonus; (c) Performance-based pay; (d) Other matters related to working conditions, welfare, etc. All of these provisions are related to temporary workers, and each Act prohibits discrimination against temporary workers. Article 21 (2) Any temporary agency worker who has received discriminatory treatment may request a correction thereof to the LabourRelations Commission. Article 21-2 (1) Where any temporary work agency or user company gives discriminatory treatment in violation of Article 21 (1), the Minister of Employment and Labour may request a correction thereof (2) Article 21 (3) Articles 9 through 15 and 16 (excluding subparagraphs 1 and 4 of the same Article) of the Act on the Protection (etc.) of Fixed-Term and Part-Time Workers shall apply mutatis mutandis to requests for correction under paragraph (2) and other procedures for correction. In such cases, fixed-term or part-time employee and employer shall be construed as temporary agency worker and temporary work agency or user company, respectively. If the Labour Commission determines that the treatment in question is discriminatory after completing an investigation and inquiry, it shall issue a corrective order against the employer. In addition, if an employer conducts discriminatory treatment, the Ministry of Employment and Labour may issue a correction request. As noted below a recent success has been a ruling about penal damages for discrimination in the case of Temporary Agency Workers (TAG). 230

231 Despite the success of this case, most non-regular workers do not fight against discrimination. Although a system for correction of discriminatory treatment has been adopted since 2007, the number of applications for correction of discriminatory treatment is now under 100 cases per year. The total number of applications for correction is only 2802 cases since Figure 10.2 The number of applications for correction received Source: National Labour Relation Commission, 2016 The main reason why many non-regular workers do not challenge perceived discriminatory treatment is that they run the risk of being terminated. In addition there is a gatekeeper problem, in that the National Labour Relations Commission doesn t readily accept applications, for the reason that many non-regular workers cannot point to a comparison group against which they can build their case for discrimination. In fact, in a previous case, the National Labour Relations Commission rejected an application filed by toll collectors who were temporary workers of the Korea Expressway Corporation, because there were no suitable comparison subjects. The National Labour Relations Commission takes a strict constructionist approach towards the range of comparison subjects, and this is why many nonregular workers now hesitate to file requests for correction Discussion with the EU on how to handle this problem need to be discussed and then adopted. 303 Although discrimination against non-regular workers is prohibited in Republic of Korea, a study by the Federation of Korean Trade Unions submitted to the ILO suggested that many non-regular workers suffer from discrimination in many respects. More than half of the respondents agreed that discrimination still occurs in relation to most of the categories surveyed, except in relation to 231

232 10.4. Comparative Challenges and Issues in the EU and Republic of Korea Analysing the way these directives covering people with atypical contracts (fixed term, part time and temporary) are enforced at national level should be additionally researched in order to provide information about the protection of workers with such contract against discrimination. A major project in the EU on the European Pillar of Social Rights will be announced in April Labour market and social protection of irregular workers represents and issue in many EU Member States as well as the Republic of Korea and the challenges differ between the categories of irregular workers and different countries. The clear difference is that whereas complaints by Korean workers have been brought to the ILO,, complaints brought by EU workers or trade unions on discrimination issues are not based on provisions of the Convention no. 111, but directly linked with the three EU Directives (for part-time work, fixed term work and agency work) previously described and nornally brought to the CJEU. Another challenging situation with irregular forms of employment that needs appropriate research in the near future is represented by the cases brought before the Court of Justice of the European Union and before the Committee for Social Rights of the Council of Europe dealing with litigation and complaints on various issues including the position of posted workers. Several of these cases were briefly referenced in an earlier section. The transition towards the sharing economy and use of IT platforms for providing services (e.g. Uber, AirBnB and suppliers of domestic generated electricity to the national grids) has also resulted in cases before national courts in different EU Member States related to the definition of worker (e.g. UK, FR) Fixed contracts and permanent contracts workplace relationships, and especially in the categories of pay and labour security, 64.8% and 62.2% of respondents answered that discrimination exists against non-regular workers. It is argued that the sample size in this survey was inadequate and the processing statistically unsound. 232

233 The member states of the EU have considerable differences in the structure of the employment market, despite the common directives on non standard and standard work. Equally the Republic of Korea has its own structure, so comparison is not a simple process. The most easily compared rates are the conversion rate from fixed term contract to indefinite contract and the ratio of part time workers to full time workers. These figures are taken from an OECD study and show that the conversion rate of varied considerably from 22.4% in the Republic of Korea, through 46% for Spain to 69.9% for the Netherlands and 79.7% in Luxembourg. Figure 10.3 The Rate of Conversion to Regular Workers after 2 or 3 Years of Probation, by Country Source OECD From 1984 to the early 2000s the Spanish had a very similar law to the present Korean law, giving a three year fixed contract, non renewable except by replacement with a permanent contract. This 1984 reform was somewhat more radical than in other European countries. In particular, while in some countries TCs were already restricted to some type of workers or sectors, the Spanish 1984 reform like the present Korean law, did not limit in any way the applicability of TCs. At the same time, the 1984 reform set an up or out clause after three years of continuous employment in a TC. Upon expiry of this legal limit a temporary employee has to be promoted to a permanent contract or dismissed. Soon after their introduction, coinciding with the expansion of the late 1980s, 233

234 more than 90% of newly created contracts have been fixed-term, and this translated into a rapidly growing stock of temporary employment, from 11% in 1983 to approximately 35% by the early 1990s, which is more than three times the European average (see OECD 1987, 1993). However, during the same time span, unemployment remained as high as before the reform. Within a decade, the Spanish labour market had experienced record rates of gross job creation, but little permanent employment had been created as only a small fraction of TCs had been converted into PCs. The labour market had gradually evolved towards a dual structure, with two thirds of employees retaining a permanent status and the rest working in a highly mobile market. Interestingly enough, once these effects became evident, Spanish policy makers restricted the applicability of TCs and offered fiscal incentives for their conversion into PCs (Permanent Contracts) (1994 reform). Later reforms (in 1997 and 2001) continued to limit the applicability of TCs as well as offering incentives to convert TCs into PCs. The EC directive of 1999 was implemented in the early 2000s, and by the time of the OECD survey shown above, the rate of conversion had risen to 45%. 304 The varied impact of the application of the EC1999 directive to the member states of Europe can be clearly seen in diagram The impact of the 2007 APFPW change in South Korea can be tracked in diagram 10.6 dating from 2015 Because the total number of workers in Republic of Korea has steadily increased, the employment rate of non-regular workers has slightly decreased from 35.9% before the global financial crisis of to 32% (Figure 10.6). It is notable that the number of regular workers has dramatically increased because of the enforcement of the APFPW, which limits the maximum period for fixed-term workers to two years. However conversion from non-regular to regular workers is low as shown in Figure Figure 10.4 The Number of Non-regular Workers and Regular Workers

235 Regular Workers(A) Non-regular Workers(B) Ratio{B/(A+B)} Source Statistics Korea The number of non-regular workers in the Republic of Korea as shown has been relatively static since 2007 while the number of permanent employees has risen faster. In 2016, 6,156,000 people were working in the Republic of Korea as non-regular workers, constituting 32% of regular workers (13,077,000 people) and 22.8% of economically active population (26,955,000 people); the missing 28.7% of the workforce (economically active population) are unemployed, self-employed, and unpaid family workers). 305 With regard to the APFPW, certain research 306 based on data from Korea Statistics shows the following: Cases of re-employment of workers after two years of employment without hiring as an indefinite term (which violates the APFPW) have been dramatically reduced from 2010 (36.1%) to 2014 (18.6%). Regarding the rate of re-employment (as indefinite term workers) of fixed-term workers after two years of employment: (i) in workplaces of less than 300 workers, the rate 305 Supplementary Results of the Economically Active Population Survey by Employment Type in March 2016 ( (last access : 7 February 2017) 306 Korea Labor and Society Institute, Results of the APFPW,

236 increased from 2010 (21.4%) to 2014 (41.7%); and (ii) in workplaces of more than 300 workers are hired, the rate decreased from 2010 (20.9%) to 2014 (19.2%). Whereas the EU directive mandates that wages be the same for temporary workers as for indefinite workers, research by the Korea Labour Institute shows the opposite effect. In addition, the gap in monthly salaries between non-regular workers and regular workers has increased significantly after the global financial crisis, with non-regular workers earning 65% of the salaries of regular workers in 2007, decreasing to 55.8% in Figure 10.5 The Amount (and Ratio) of Monthly Salary of Non-regular Workers and Regular Workers (Units: KRW) Regular Workers(A) Temporary Workers(B) Ratio(B/A) 3,000,000 2,500,000 2,000, ,500,000 1,000, , Source: Statistics Korea 2016 This seems to be a prime reason why the labour side began to present this as an issue to the ILO from onwards.(there were no observations or requests directed to Korea in 2009 and The ILO noted that the KCTU and the ITUC continue to express concern at the increasing wage discrepancy between regular and non-regular workers (with an overall wage gap of 46.2 per cent in 2010), poor working conditions and the low participation rate of non-regular workers in various

237 social insurances. With regard to the wage gap between regular and non-regular workers of 46.2 per cent, the Government states that when factors such as gender, age, the length of service and number of working hours are controlled, the wage gap is 15.7 per cent (2009 Survey on Labour Conditions and Employment Type). 308 The ILO study Republic of Korea:Development of National Employment Policies through Two Economic Crises, 2012 quotes an even lower hourly wage gap of 9.1% in 2011, for workers who perform the same tasks and have the same personal qualifications. 309 The same report recorded discrimination between permanent and fixed contract workers in terms of social insurance and benefits which are prescribed for all employees under the Labour Standards Act Part Time Workers As seen below the use of part time is very common in many EU Members States, especially for women who in all EU Member States represent a larger proportion than the number of males working part time The Netherlands leads the rankings,, mainly as a result of an accord between government and unions in the 1980s, with 50% of part time employment as percentage of the total employment and more that 76% for women in part time employment as percentage of total employment. Other countries with more that 20% of people in part time work as percentage of total employment were Austria, Germany, United Kingdom, Denmark, Sweden and Ireland. At the other end of the rankings are Bulgaria, Czech Republic, Hungary, Slovakia and Poland with less than 6% of people working part time. Table 10.8 taken from the ILO report of 2016 shows the current percentage of the labour force who are part time in the EU member states and other European countries Republic of Korea:Development of National Employment Policies through Two Economic Crises, 2012, Appendix B, 61. The comparison appears to be of manufacturing workers paid on an hourly basis where the minimum wage is the base guideline for companies. 310 Ibid quoting Statistics Korea, Supplementary Results of the Economically Active Population Survey which does not distinguish between different classes of non regular workers. 237

238 238

239 Figure 10.6 Current percentage of the labour force who are part time (less than 35 hours a week) in the EU member states and other European countries The green dots indicate 2015 data Source: ILO (2016) Non-Standard Employment Around the World, p77 239

240 The ILO has just completed a major study of non-standard employment around the world, which allows a better comparison of the relative situation of EU Member States and Republic of Korea concerning the situation of part time workers. 311 The diagram below suggests that part time workers fare better than fixed term contract workers and that Republic of Korea s part time employment wage gap is much smaller than 11 of the 13 EU Member States included and, notably, lower than Germany, Italy, Ireland, France and Austria. Figure 10.7 ILO survey of the part time workers wage gap (varied years of survey) 312 Source: ILO, Overview Figure 7, p16 based on Appendix to Chapter 5 of the main report, note Netherlands is not included in this figure. This suggests that despite the disproportionate number of women holding part time jobs in Korea and the high estimated gender pay gap reported in previous chapters, the Republic of Korea appears to have a relatively low pay gap for part time workers. 313 According to other data in the 311 ILO 2016 Non-Standard Employment around the World Overview. 312 Wage Penalty of Part Time Work Table 7 of Non Standard Employment around the world 2016, p It should be noted that an inadequate sample of countries are included, with the Netherlands an important missing data point. 240

241 Netherlands Austria Germany United Kingdom Denmark Belgium Sweden Ireland Luxembourg France Italy Spain Malta Finland Cyprus Slovenia Portugal Estonia Greece Romania Lithuania Latvia Poland Croatia Slovakia Hungary Czech Republic Bulgaria survey the ILO report distinguishes between part time work for men and women, since women are often more likely to be compelled to take part time work (defined as less than 35 hours a week). On this basis, the percentage of both men and women working part time is somewhat smaller in Republic of Korea than most EU Member States. For women, the number is around 40% for many EU Member States, rising to over 60% in the Netherlands, and 30% for Republic of Korea. The EU distinguishes between voluntary and involuntary part time work... Voluntary part time work is where the employee chooses for family or life style reasons to hold a part time job and involuntary is when the employee would like to work full time. Figure 10.8 Part-time employment as percentage of the total employment, by sex in 2015 Men Women Total Source: Eurostat, Database Part time employment is highly used in the EU in countries such as: Netherlands, Austria, Germany, United Kingdom, Denmark and Belgium. On the other side is less common in Bulgaria, Czech Republic, Hungary, Slovakia, Croatia, Poland, Latvia, Lithuania and Romania. 241

242 Greece Cyprus Italy Spain Bulgaria Romania Portugal France Ireland Hungary Latvia Lithuania Finland Poland Slovakia Sweden Croatia United Kingdom Czech Republic Denmark Malta Luxembourg Germany Estonia Slovenia Austria Belgium Netherlands Figure 10.9 Involuntary part-time employment as percentage of the total part-time employment, by sex in 2015 Men Women Total Source: Eurostat, Database A totally different picture can be seen when analysing the data on involuntary part time employment as percentage of the total part-time employment. The graph 10.9 shows the labour market challenges of countries like Greece, Cyprus, Italy, Spain, Bulgaria, Romania and Portugal where more that 50% of people working part time are doing so because they haven t managed to find a full time employment. At the other end in Netherlands only around 10% of people were in involuntary part time employment as percentage of the total part-time employment, this signalling that majority of people in Netherland working part time do it as a choice and are not forced to by the fact that they couldn t manage to find a full time job. It is strongly recommended that the Republic of Korea mirrors this kind of data, because it could eliminate the complaints to the ILO that women are discriminated against by the high proportion of part time work

243 10.5. Temporary Agency Work (TAW) The ILO uses the term TAW to cover dispatched, agency, subcontracted or outsourcing of labour (as distinct from production). In Europe the percentage of the work force in TAW is reported at an average of 1.3%, rising as high as 2.2% in the Netherlands. In Republic of Korea the ratio was 4.4% in 2013 not including in house sub-contracting whereby workers are hired through a subcontractor but work in the premises of the lead firm. This is especially common in large firms with more than 300 employees. 315 Numbers appear to have fallen as the OECD provides ratios of 2.9% for the Netherlands and only 1.1%. 316 Recently, the National Labour Relations Commission ruled that a company using temporary agency workers was liable for discrimination against such workers, in comparison to its own employees. In addition, the Commission awarded punitive damages against the user company. In this case, temporary agency workers filed an application for remediation with the Incheon Regional Labour Relations Commission, claiming that they had been discriminated against in comparison to the company s own employees. In response, on 17 March 2015 the Commission decided that such an application could not be filed against the user company, and issued a corrective order only addressed to the temporary worker agency (the direct employer of the agency workers). The workers then appealed to the National Labour Relations Commission, and the Commission overturned the initial decision and ruled that both the company and the temporary worker agency should be jointly liable to pay punitive damages, and the damages awarded were double the actual amount of damages incurred due to the discriminatory treatment. Before this case, there had not yet been any case in which punitive damages were actually awarded. This case is meaningful because the National Labour Relations Commission actually applied punitive damages provisions, and because of the level of damages awarded. 315 ILO Non Standard Employment, p.13 This exclusion makes the comparison less meaningful 316 Data provided by source citing OECD Employment Outlook As OECD uses the ILO database this discrepancy is not explained but as the numbers are small the team did not investigate further. 243

244 10.6. Policy Conclusions and Implications The difference between Korean law and EU law is that the EU law requires each member state to be restrictive about which jobs may have fixed term contracts, and has enforceable clauses which are supposed to ensure that successive fixed term contracts are not created. No time period is given for the maximum length of a fixed term contract. The CJEU has steadily taken on cases to clarify procedures and enforce these laws. 317 In Korea there is no industry specific concept applied to fixed contracts, but only a single term fits all of a maximum of two years. What seems unique is the creation of the category of fixed term workers who are full time and do the same work as regular employees but receive less pay and are sometimes (illegally) are denied the benefits guaranteed to them by the Labour Standards Act. Inconsistencies in employers behaviour with regard to benefits forms a kind of indirect discrimination, since they appear to partially stem from the way that the law was created to regulate the difference between unlimited and limited employment contracts. A careful study of corresponding definitions in EU member states might be of value The ILO report Non-standard employment around the world: Understanding challenges, shaping prospects (NFSE) highlights that non-standard jobs can provide access to the labour market, especially for disadvantaged groups such as youth or migrants, and in some instances, can provide opportunities for moving to better jobs. In addition, NSFE (Non Standard Forms of Employment) can provide flexibility to both enterprises and workers, especially when part-time work is chosen voluntarily. The report cautions, however, that some forms of non-standard employment can be associated with greater insecurities for workers. In countries where NSE are widespread workers risk cycling between non-standard jobs and unemployment. The report identifies the policies needed to improve the quality of non-standard jobs, while helping enterprises to adjust to market s volatility. The report finds that there has been a rise in nonstandard forms of employment (NSFE) globally, including increases in temporary work, part-time work, temporary agency work and subcontracting, dependent self-employment and disguised employment relationships. The latest statement from the ILO on Korea in 2015 concerning the protection against discrimination based on the grounds of gender and employment status is as follows. With respect to non-regular workers, including women working part time and short term, 317 A large number of cases are cited by Pietro Drabik in his article 244

245 the Conference Committee urged the Government to review, in consultation with workers and employers organizations, the impact of reforms and continue to submit relevant data so as to evaluate if the protection was adequate in practice. Further, with respect to the promotion of equality of opportunity and treatment of men and women in employment, it urged the Government to continue to monitor the participation of women in the labour market and provide relevant data and information. 318 The team considers that the ILO should consider disaggregating their standard heading of Discrimination on the basis of sex and employment status which is applied only to Korea, since there is already a section on Equal Opportunity and Treatment of Men and Women where remarks about the issues relating to the differential ratio of men and women in part time work belong and where they are normally included in the case of other countries As explained in this chapter, the issue of discrimination on the basis of employment status is best considered separately from discrimination on the basis of sex. However creating equivalent statistics on voluntary and involuntary part time work in Korea would clarify the degree that this is an issue or not. 320 In general the ILO report on non standard forms of employment concludes, Non-standard forms of employment are not new, but they have become a more widespread feature of contemporary labour markets. We need to make sure that all jobs, regardless of their contractual arrangement, The heading Discrimination on the basis of sex and employment status is only used in the case of Korea. Three cases reflect on observations on fixed term contracts and discrimination, two referring to pregnancy and fixed term contracts Slovenia direct request 2011 and Finland Direct request. A direct request was made to the Netherlands in 2007 for better statistics Other issues clustered in Annex II occur under alternative headings. The EU overview report of 2013 again picked pregnancy as the main issue The main sex discrimination problem identified in relation to fixed-term contracts concerns the non-renewal of such an employment contract in relation to pregnancy. (European Network of Legal Experts in the Field of Gender Equality, S. Burri & H. Aune, Sex Discrimination in Relation to Part-Time and Fixed-Term Work: The application of EU and national law in practice in 33 European countries, European Union 2013, DOI /53404) page Tony Michell One Million Jobs Project 2016, argues based on workshops held in four cities that many women would return to work if decent part time work existed. 245

246 provide workers with adequate and stable earnings, protection from occupational hazards, social protection and the right to organize and bargain collectively. 321 The report argues that well-designed and regulated NSFE can help enterprises to respond and adapt to market demands, contributing to enterprise sustainability and growth. But widespread use of NSFE can also have important and underappreciated consequences for businesses. Short-term cost and flexibility gains from using NSFE may be outweighed by longer-term productivity losses. There is evidence that firms that use NSFE more tend to underinvest in training, both for temporary and permanent employees, as well as in productivity-enhancing technologies and innovation. 322 The Korean case brought to the ILO almost every year since 2011 onwards is a reminder that there are important discrimination issues which can lie buried within the world of NSFE. Republic of Korea attempts to ensure an absence of discrimination in benefits between contract and regular workers, but every time factory inspectors investigated in the past they appear to have found nonobservance of the law in about 80% of workplaces inspected. 323 The current figures are much lower. In cases were found out of 10,300 inspected workplaces which was only 1.8% suggesting a marked improvement in observance of the law. It would prove valuable to conduct a study specifically on the issues of Non-standard work with respect to a select group of EU Member States and Republic of Korea guided by the ILO to obtain better data and share respective policies on NSFE to build on this recent ILO report. Some of the efforts at EU level to improve the protection of workers in the new economic context in terms of equal opportunities, working conditions, social protection and inclusion will be include the proposals on the European Pillar of Social Rights that the European Commission will present in April Also, the adoption of envisaged EU legislation on the information on the employment relationship and on access to social protection is anticipated. 321 ILO report, Non-standard employment around the world: Understanding challenges, shaping prospects (NFSE), Idem 323 Korean Government figures given on inspection results in these areas in recent years.information given to the ILO as part of the reporting process. ILO Archives Fonds Korea c

247 11. Good anti-discrimination policy steps towards identifying lessons learned General Prescriptions If our conclusion is correct in believing that all countries need to work harder on issues of workplace discrimination, the question is how to achieve the best results and where can the best practices be found? At the project workshop, Alain Pelce of the ILO stressed the importance of regarding fundamental ILO convention no. 111 as a promotional convention. As a participant in the workshop reminded the Project Team, careful definition of best practice is important. For maximum impact, the Final Study does not only look at best practice by governments, but also best practice as it applies to equality bodies and NGOs. This should include the role of media and social media. All 29 countries considered in the project have a legal structure which supports the elimination of discrimination in the work place. In the EU, Member State legislation is intended to be in conformity with successive directives on specific issues related to discrimination. By contrast, Korea has no higher court above the national level to contest the law. In addition, the Korean Constitutional Court, which has the power to nullify national laws passed by National Assembly, has never explicitly cited any ILO Conventions in any case. Therefore, at this time the only way to change national laws of Korea to be in conformity with ILO Conventions is if the National Assembly revises them by itself. In this regard, The Republic of Korea is typical, as the ILO s claimed quasi-judicial status is not formally recognised in many other countries, or its status has not been pleaded in actual cases. 324 The issues which have been discussed in the preceding chapters are, with the exception of political issues, generally related not to the details of laws themselves, but to the ability of a national government to ensure that there is no discrimination in practice in large numbers of private enterprise workplaces. This is particularly difficult in the Republic of Korea, where there are about 4.5 million establishments many of them very small SMEs with less than 20 workers. Migrant workers are particularly vulnerable to discrimination as they predominantly work in small 324 Heiko Sauer, International Labour Organization (ILO) and sources cited by Sauer 247

248 enterprises. Any discrimination prevention and redress therefore relies on labour inspectors, education of employers and employees and in the case of gender issues affirmative action programmes. Further discussion, analysis and education with regard to combating discrimination in the workplace is the first general prescription. The nature of work itself and our societies will change more in the first half of the 21 st century than at any time in the 20 th. Leaving unresolved equality issues from the past are likely to compound inequality in the future. Chapter 11 lays out good practice principles, and Chapter 12 provides specific examples of good practices we have identified during the study The value of interlocking ILO conventions The ILO conventions put together, build an equality ecosystem built round the principle of decent work which is up to date and brings the possibility of expertise to discuss difficult issues, and the latest thinking on common issues. Such an initiative, which requires actively promoting the signing of conventions, should be developed country by country. A good example is the ILO Convention 158 on termination of employment which is ratified by only about half the EU Member States. Nor is it ratified by the Republic of Korea, but is strikingly similar to the government Guidelines of late Indeed the work of the ILO needs to be favourably publicised more extensively. Stakeholders responding to the project questionnaire reported that a majority were not aware of the details of ILO Convention no. 111, although nearly all were involved in anti-discrimination activities. In initiating this move, the ILO may need to improve its public image in some countries where it is hardly known or better known for criticising governments and where its consultative work is less well known. Studies of how the conventions improved decent work in those countries which signed would also assist. The ILO has worked with the Republic of Korea to promote decent work in other Asian countries. The ILO/Korea Partnership Programme was launched in The programme provides technical assistance to help achieve the goals of the ILO s decent work agenda in Asia and n

249 the Pacific. The partnership s approaches and plan of work was reaffirmed in December 2011 at the ILO s 15th Asia and the Pacific Regional Meeting in Kyoto, Japan. The meeting recognized the importance of the ILO/Korea Partnership Programme in supporting the objectives of the Asian Decent Work Decade ( ). The Programme presently supports the following areas which have been identified as ILO regional priorities: Competitiveness, productivity and jobs; Labour market governance and social protection; and Labour migration. Since its inception, the ILO/Korea Partnership Programme has increased its scope of work to cover vocational training, occupational safety and health, green jobs and labour migration in many countries of the region. The ILO s partnership work with the Republic of Korea is supported through the ILO Regional Office for Asia and the Pacific, based in Bangkok, Thailand. 326 The ILO and the EU worked together from 2001 in a similar decent work and social justice partnership. 327 In both the EU and the Republic of Korea these were focused on outward cooperation or in the new Member States of the EU and perhaps could focus more on the internal debate as employment, gender issues in the workplace and migrants form part of the agenda of every country under study. The most recent collaborative venture of the ILO is with Gallup and the Danish Institute of Human Rights to work on a global opinion survey, the results of which are due to be announced in March Equality education in the work place Continuing the principle that discrimination is best contested by dialogue and education, a general principle of good practice is encouraging education. The most significant change in Republic of Korea regarding gender equality came in 1996, when HR personnel of each firm were required to

250 attend training at the local labour office and then to hold consciousness-raising sessions amongst employees. Recent moves have been made to promote online education, but this has poor retention rates and does not promote discussion between peers. 329 (In the opinion of the Consultants, celebrating UN Women s Day with a single ceremony does not amount to a proper public campaign.)recognizing that there is an ecosystem and using that infrastructure to spread debate and messages would seem worthwhile and requires stakeholders to actively debate these issues involving working professionals such as Labour Inspectors and Employment Agency Recognize, Re-evaluate and Reinforce the Ecosystem The ecosystem described above has evolved, rather than been designed, and some parts probably work less well than they should. There is a need for each country to study its ecosystem and remedy any malfunctions. We came across instances during the study where two or more institutions were fighting over parts of the ecosystem where cooperation would bring stronger results. This includes social partners and the role they have in the system, given that the overwhelming number of beneficiaries of a better system are employees without official positions within the ecosystem. In particular, the effectiveness of the labour inspectorate and its ability to inspect a reasonable proportion of workplaces requires further study. Evidence presented to the ILO showed that when inspectors visited large number of work places they found 80-90% infractions of work standards Speed of redress and ease of finding redress Justice delayed is justice denied is a saying attributed to the great British nineteenth century statesman William Gladstone. The benefit of the traditional labour office system in the Republic of Korea is that an employee can make a complaint in the morning and the company management receives a phone call for redress in the afternoon, and because the entire process is local, it is hard 329 There was an Act which obliges employers to conduct equality education, but such Act did not provided specific articles with regard to sexual harassment. The training was presumably therefore the initiative of local labour offices. Current training is by on-line pamphlets. Evidence for lower retention rates for on line learning have been conclusively shown in studies such as by Babson Survey Research Group and Quahog Research Group, LLC 250

251 to discriminate against the complainant. By contrast, in the same country, the Supreme Court was too busy to hear a key case concerning a labour union for eight years. The more important issue is whether redress is available to ordinary citizens and especially those of below average education, below average wealth and sometimes below average understanding of the national language. This then concentrates attention on both the courts and equality bodies and all the other official and NGO bodies who are stakeholders, and their responsiveness and powers with respect to issues of discrimination. In the case of individuals where a labour office or labour arbitration system exists, as in Korea things can be quickly put right, whereas the national courts have their own momentum. Our conclusion for discussion is that labour issues should have their own quick system of resolution, as equality in the workplace had an immediate impact on employees. Equality bodies, if involved, also need to see whether there is an express system to deal with labour issues Non-Compliance in Small- and Medium-sized Enterprises (SMEs) The case was made by employer s organisations that large companies could normally be expected to be compliant, but SMEs could present a host of inequality issues. Many SMEs are likely to have less regular and less regulated systems, less pleasant working conditions, and employ those less well-educated and non-unionised. In these cases, Labour Inspectors may be a solution, but a more scientific way than face-to-face inspection may be to study rates of employee turnover (revealed through social security data) and choose those companies with the highest turnover for inspection. This is because in small, badly managed companies, the employees only possible move is to leave the company. In the case of EPS workers in Korea and a number of member states including the UK, their conditions are difficult, and where migrants depend on a work visa or worse, are working illegally changing workplace is difficult and abuse is feared to be common Work led by Durham University in 2013 found evidence that the numbers of people trafficked for labour exploitation would soon exceed those brought to the UK for sexual exploitation. BBC news item of the ten year anniversary of the Morecombe Bay episode when 23 undocumented Chinese workers died while collecting cockles. The research was part of a wider 2.5 million research project funded by the European Commission, and led by The International Centre for 251

252 11.7. Gatekeepers During the study, we observed many cases where delays in dealing with discrimination could be attributed to what we came to term gatekeepers. In every organisation there are gatekeepers who exist not because the organisation intended them to act in this capacity, but because of an unintended side-effect of organisations which left important tasks to junior members of staff. The classic example is the assistant or secretary of the busy CEO who decides much his agenda, and who is permitted to see him. In the study we observed many cases where public and private organisations had created gatekeepers who did not see equality as their concern. As more instances of discrimination probably occur in the hiring of new staff, where disability, age, gender, social status and education all easily play the part of disqualifying qualified candidates, the HR department of every organization has a critical gate keeping function. Therefore this group of professionals should be co-opted into the campaign to reduce discrimination. Senior management has a duty to work with their HR managers to establish a clear ethical code for decent work. It was proposed in the workshop that in some countries, some issues may be resolved by recognizing the role of gatekeepers. The explicit recognition of who are the gatekeepers, and training for their role in the flow of information and redress is vital Who are the gatekeepers? A gatekeeper in organizational analysis is normally a fairly junior member of an organization who makes important decisions about whether there should be access or communications with the more senior members of the organization. In complex organisations there may be whole departments which act as gatekeepers. In the case of areas relating to the implementation of ILO Migration Policy Development on 'Addressing Demand in Anti-Trafficking: Efforts and Policies' There is now an active on line literature of how to beat the HR gatekeepers Google give 925,000 references. 252

253 Fundamental Convention no. 111 the gate keepers are primarily 332 : HR departments of companies; Key departments within the Ministry of Labour and for migrants, the Ministry of Justice or Border Defence Force or other organization in Member States. The UN Raporteur on Freedom of Assembly and Freedom of Association criticizes government for acting as a gate-keeper for the formation of unions rather than the normal western principle of accepting reports. 333 HR departments also have to recognize their role in this matter. 334 Human resources deals with a variety of ethical challenges that if not handled properly can damage a company s reputation, lead to serious legal issues and potentially high cost impact to an organization. For example, discrimination issues, sexual harassment and unfair employment policies can damage a company s reputation as well as have severe financial impact. It is recommended that the HR departments should have a primary role in the development and integration of ethics programs into key organizational activities, such as the design of performance appraisal systems, management training, and disciplinary processes. 335 Government departments with gatekeeper functions exist within a more complex context, since administrative practices and guidelines often hide the nature of a gate keeping function. This can apply in the case of migrants trying to change jobs, decisions on who can be a union member or whether a case represents discrimination to a labour inspector. Just as in the private sector, HR departments need to develop and integrate ethics programs into key organizational activities, so too, the within government organizations there should be a function which develops and integrates ethics programmes. At this point the Project Team is unsure whether such a function is recognised within any specific government ministry or organization This is an area of limited academic enquiry. Existing academic works have largely concentrated on information flows in which the gatekeeper term is a metaphorical one, and not a less metaphorical sense of allowing people access to change or activities. The original concept of gatekeeping was applied to the personal secretary in relation to access to his or her boss. One exception is Ian Bache, The extended gatekeeper central government and the implementation of EU regional policy in the UK Ibid 336 See also Jacques Steinberg, The Gatekeepers, Penguin 2002, Pamela J Shoemaker Gatekeeping Theory, Routledge 2009; Chris Roberts Gatekeeping Evolution 253

254 12. Examples of Good Practice The search for good practice The Project Workshop held on November 30 th in Seoul ended with a strong appeal for the identification of good practice, and the careful definition of what constitutes good practice with respect to cross-national differences between societies and labour markets. This chapter picks up examples which the Project Team identified. From our survey, Gender discrimination and Migrants came highest as issues present in the 29 countries and what follows are mainly related to Gender Issues or Diversity Issues (which could include both women and migrants) The Gender Test (BELGIUM) 337 The Gender Test is an analysis instrument designed to assess the impact of draft laws and regulations on the respective situations of women and men. This instrument was established in December 2013 and is included in the regulatory impact analysis (RIA) which is mandatory and carried out for all draft legislation before the adoption in the council of ministers. A major purpose of the practice is to reinforce equality between women and men. The Gender Test is performed by the institutions that develop the specific legal acts and the purpose is to stimulate reflection on the impact of the regulatory proposals on the situations of women and men. The Gender Test includes a series of open questions aimed at ensuring that regulators have a clear idea of the respective situations of men and women in the area covered by the draft regulations, so they can then evaluate the impact of their proposal on the situations of women and men. The five open questions used for this test are: Question 1 What persons are (directly and indirectly) concerned by the project and what is the gendered composition of the group(s)? 337 Source: The Institute for Equality of Women and Men Belgium information available at and 254

255 Question 2 Identify possible differences between the respective situation of women and men in the subject matter of the draft regulation. Question 3 Do some of these differences limit access to resources or the exercise of the human rights of women or men (problematic differences)? Question 4 Given the answers to the previous questions identify the positive and negative impacts of the project on equality between women and men. Question 5 What measures are being taken to alleviate / compensate for the negative impacts? The law under which this impact assessment was created also mandated the establishment of a committee. The committee is composed of representatives from the institutions influenced by the various aspects of the impact analysis. This committee can offer advice on the ways to improve the quality of the analyses performed and prepares reports on the implementation of this practice by the institutions. For the successful implementation of this type of practice, the staff that performs it needs to understand the importance of the equality and non-discrimination framework and to be welltrained on the subject. The main risk is that such practices could be seen as an increase in bureaucratic procedures if performed only as an obligation. To further enhance the outcome of the Gender Test the extension of the scope could be considered, going from a limited assessment on the impact on women and men to an impact analysis of draft legislation on other relevant groups that are at risk of direct or indirect discrimination, such as the aged, the disabled, and migrants Equality and Diversity Label System (FRANCE)338 The Diversity Label is a collaborative approach that brings together public authorities (ministries) and different stakeholders (the French Association of Human Resources Managers (ANDRH) and social partners) in a common effort to ensure equality and non-discrimination. 338 Sources: French Association of Managers of Diversity (AFMD) GUIDE-LABEL-web.pdf and AFNOR Group France 255

256 This practice has both a promotional objective and practical desire to achieve a positive effect on company human resource policies. At company level the certification system foresees an improvement in practice regarding recruitment, integration, career management and remuneration by enhancing the human resource management and attempting to identify potential discriminatory practices. The Label is granted for a period of 3 years and has three different versions based on the type of employer: organisations of more than 50 salaried employees; organisations of fewer than 50 salaried employees (micro businesses, SMEs); civil service departments. Also, the employers that want to obtain the Label need to go through an assessment process into five areas: an appraisal of diversity in the workplace; the definition and application of a diversity policy; in house system developed for communication, information, awareness raising and training on diversity subject; implementing diversity in activity; evaluation and improvement in the application of diversity. The labelling commission has an equal representation from all the stakeholders with five representatives of the State, trade unions, employers associations and the French Association of Human Resources Managers. The Secretary General of the Diversity Charter participates in the labelling commission by delegation. The Label System is designed to support the improvement of company internal procedures, HR management, management practices in general and relations with others The Equality Diversity Label (BELGIUM) Source: European Commission Migration and Home Affairs 256

257 The Equality Diversity Label was developed to strengthen diversity in the workplace and to combat discrimination and stereotypes. The aim was to enhance the implementation of diversity policy in companies or public authorities and targets any public and private sector and association in Belgium. The Equality Diversity Label was granted to three cities: Gent, Leuven and Liege. The main areas of action are gender equality, corporate pro-diversity culture and human resources practices. The objectives of the Equality Diversity Label were to: recognised diversity as a positive value in the workplace; identify role model in matters concerning diversity, equal opportunity and nondiscrimination; promote a pro-diversity corporate culture; integrate the "diversity" dimension into processes and in human resource management; develop a specific internal communications strategy; train top management and officials in matters concerning diversity. 257

258 12.5. Equality Mark Certification (MALTA) 340 The Equality Mark Certification is awarded by the National Commission for Promotion of Equality (NCEP) to organisations that make gender equality a priority of their management and practices. It has the role of promoting best practices in the area of gender equality at company level. Figure 12.1 Equality Mark Logo Source: National Commission for Promotion of Equality website The Equality Mark is awarder to companies that respect and promote the following principles: Policies and Initiatives Develop an internal policy regarding equality and sexual harassment that comply with the legislation and implement a reporting procedure for discriminatory practices in terms of gender equality; Recruitment and employment - Implement procedures that respect the principles of equal opportunities in: short-listing of candidates for interviews; interviewing process; training; staff retention; evaluation and promotion. Respect the equal pay for work of equal value principle and ensure that workforce profiles and job descriptions are gender neutral. Employee Equality Representatives and Equality committee establish a contact point in the organisation (Representative or Equality committee) that has the role of promoting internal awareness on gender equality policies; implement and assess the procedures on reporting discriminatory practices; ensure that the equality policy is taken into account in 340 Source: The National Commission for Promotion of Equality (NCEP) and pdf 258

259 all organisation actions; provide feedback to public authorities in process of drafting new legislation/policies in the gender equality area. Equality in Career and Personal development opportunities promote and respect equal opportunities in access to training and other activities implemented to improve staff skills and capabilities; access to information and to measures designed to facilitate participation of employees with caring responsibilities training and career development activities. Family friendly measures for men and women with caring responsibilities - provide incentives for men and women with caring responsibilities to remain employed or return to work; ensure access to information about the incentives available and that access is granted without discrimination; register information about persons applying for family friendly measures. Gender Equality in the access to and supply of goods and services - Ensure that EU directive 2004/113/EC is respected and any goods and/or services supplied and/or managed by the organization are equally accessible to men and women. The organisations that want to get the Equality Mark Certification apply to NCEP and undergo a process of evaluation. Also, applicants receive support to enhance their internal standards to level required for the award of certification. The Equality Mark Certification is valid for two years and may be renewed Depersonalised application procedure (GERMANY) 341 The practice was promoted by the Federal Anti-Discrimination Agency (FADA) to combat discriminatory practices that can occur in recruitment processes against people from migrant background, elderly and women with children. To this end, the procedure was promoted and implemented by enterprises, public bodies and local authorities. 341 Sources: The Federal Anti-Discrimination Agency de.html;jsessionid=e1b62e4c3b1b79cab e _cid340 The European Network of Equality Bodies 259

260 In the Depersonalized application procedure the invitation to job interview is exclusively made on grounds of a person s qualifications, since information about the applicant s name, address, date of birth, age, civil status, origin or photo are not included in the job application submitted. This procedure was implemented through three processes: depersonalised online application forms that accurately specify the competences, qualifications and motivation which are important to the potential employers; standardised, depersonalised application forms which applicants receive by downloading, or mail and which they return after having filled them out; the subsequent depersonalisation of conventional application documents (by blackening out or transmission of data). This practice was quite successful in Germany, as people that faced particular challenges in recruitment processes (mainly people with a migrant background, of a certain age or with personal responsibilities) had more chance to attend job interviews and gain employment. The Depersonalised applications procedure doesn t ensure complete protection 342 against discriminations, but may help in reducing it. The procedure was carefully monitored and evaluated, and it was found that one of the features that made it successful was the fact that it relies on voluntary participation from companies, not on legal regulations. In order to ensure the homogeneity of the practices FADA developed information materials and organised workshops for interested employers. The Depersonalised applications procedure enhanced changes in the job applications process in companies and most of the parties involved continue to apply partially or completely depersonalised procedures. Also, the practice was considered for adoption by public employers, federal authorities and municipalities. 342 An example under a similar system in France: Decision MLD from 10 October 2016 of the French Ombudsman (Defenseur de Droits) where after a procedure of recruitment using depersonalized CVs a person was demanded to communicate the date of birth before being invited to an interview. The practice was considered by the Defenseur de Droits as discrimination on the ground of age. It also decided that the person and the company should reach an agreement on the way to compensate for the damages suffered within three months and that the Company should change the recruitment procedures to ensure nondiscrimination

261 12.7. Award provided to Employers that have friendly employees policies and respect gender equality and equal opportunities principles in their practices (SLOVAKIA) 343 The Award is given annually by the Ministry of Labour, Social Affairs and Family (MPSVR) of Slovakia to employers that have employee-friendly policies in place. The aim is to raise public awareness of the necessity to promote reconciliation of work and family life, and to remove the glass ceiling practices that prevent women from reaching top management positions. The winners are selected from both public and private sector organisations in multiple categories. The role is to recognise organisation efforts to ensure gender equality and access to measures that reconcile work and family commitments. Some of the practices implemented by the organisations that received the equality and family friendly award include: providing access to flexible working hours, operating its own kindergartens, providing benefits to support families, ensuring access to time-off for parents with young children, promoting a higher representation of women in top and middle management Diversity Training (DENMARK) 344 The Danish Institute of Human Rights (DIHR), one of the leading equality bodies in EU, has developed several interventions and works closely with other stakeholders to ensure the equality of opportunities and to combat discrimination. 343 Sources: Ministry of Labour, Social Affairs and the Family and Source and more information on the work of the Danish Institute of Human Right are available at: 261

262 Given the requests received from various companies that wanted to fully accommodate diversity in the workplace and to avoid discriminatory practices the DIHR developed the Diversity Training programme. This programme focuses on providing relevant information to human resource managers from companies and contains tools on how to recruit, retain and employ a diverse workforce. The Diversity Training delivered has the role of explaining the mechanisms of anti-discrimination and equal treatment through common practice in the labour market. Understanding the discriminatory practices that can occur in the working environment is the first step in preventing future repetition and in positively changing workplaces. The main outcomes of the Diversity Training are as follows: Better information on rights, legislation and mechanisms to promote equality; Enhance knowledge and practices on preventing discrimination in recruitment practices and in other aspects of employment; Improve the tools and methods used for diversity management; Develop participants' understanding of diversity and equal treatment. The Diversity Training is targeted to managers and employees in human resource departments of public and private organisations of all sizes, and is also open also to volunteers from NGOs and teachers at technical schools. In order to improve the outcomes of the Diversity Training, the Danish Institute of Human Rights continually evaluates the practice and relies on the input and feedback received from participants. This has the role of enhancing the content and ensuring the continuous development of the diversity trainers. Also, in order to increase awareness and impact of its work DIHR developed a Human Resource Manual on Diversity. 262

263 12.9. European Institute for Gender Equality Good Practices Database 345 The European Institute for Gender Equality (EIGE) has developed an online Good Practices database of effective implementation of gender mainstreaming strategies. This tool has the role of collecting and promoting information about projects, measures, and actions implemented in the EU Members States. Figure 12.2 Process used by EIGE for identifying the Good Practices 1. Research in EU Member State practices - the goal is to idetify and colect relevant projects / measures / actions with positive outcomes. 2. Selection of practices that comply with the standards used by EIGE. 3. Organization of knowledge exchange events to share practices with potential and to determine a list of good practices. 4. Indepth analysis and collection of additional information on the success factors of good practices selected. 5. Dissemination of good practices - oline or in events organised with experts, practicioners and stakeholders from EU Member States. Source: European Institute for Gender Equality EIGE uses several sets of criteria to assess if a practice identified in one of the EU Members States could be classified as a Good Practice. The aim of the process is to enhance knowledge exchange and mutual learning, and to increase awareness on effective ways to implement gender mainstreaming strategies and gender equality policies. 345 Source and more details could be found on European Institute for Gender Equality website 263

264 Some of the basic criteria used for selecting a project/ measure /action as good practice are: good performance; transferability and learning potential; link with the gender mainstreaming strategies and achievements in terms of gender equality. Currently EIGE online Database presents 87 Good Practices from EU Member States Mutual Learning Programme in Gender Equality (European Commission) 346 The Mutual Learning Programme (MLP) in gender equality represents and European Commission practice designed and implemented with the purpose of increasing exchange of practices between governmental representatives, independent experts and other relevant stakeholders from EU Member States. The MLP in Gender Equality like other Mutual Learning Programmes conducted at EU level aims to identify and promote policies implemented by EU Member States to enhance gender equality in the labour market, but not exclusively. It focuses on opportunities and constraints encountered in the implementation phase. Also, it tries to assess the possibilities and challenges for the transferability of the practice in other countries. The European Commission organise around three MLP practices exchanges events each year. The goal of the MLP in Gender Equality is to stimulate debate, exchange practices and facilitate the dissemination of good practice on gender equality from EU Members States Labour Market Issues Good Practices Attempts to reform the labour laws in the Republic of Korea in 2015 created considerable opposition between the demand for more flexible forms of employment from business and international bodies and government, and resistance by organized labour. From the point of view of Fundamental Convention no. 111 (in terms of discussion at the ILO reflected in the annual 346 Source and more information available at: 264

265 comments 347 ) there is a mismatch between the labour side s point of view and that of business, which needs to be urgently resolved. The general point made by labour holds true that different kinds of contract for the same work can lead to discrimination as explored by the ILO in the case of the Republic of Korea. The EU Member States offer a number of models for a future state of employment policy in the areas of controversy. One which might fit the Korean situation is the Netherlands Good Quality Part Time Employment Model discussed in the ILO Non Standard Employment Report of The idea of an adapted Netherland s labour market as a future model for Republic of Korea and for most 21 st century societies is worth further study. 349 This offers an important and apparently successful alternative to legislating shorter work hours, or job sharing which affects those whose pay is based on hourly payments rather than salaries, who suffer a direct fall in income if hours are shortened. Almost half of wage employees in the Netherlands work part time, mostly on permanent fixed-hour employment contracts. All workers in larger firms can request part-time hours, and pay, social insurance contributions and social insurance entitlements are all made at the pro-rata rate of the equivalent full time job. The situation came about because of a rapid increase in labour market participation rates by women, unsupported by the necessary childcare infrastructure, combined with the Wassenaar Agreement of 1982, under which unions moderated wage and working hour demands in exchange for policies to combat unemployment, including the development of parttime employment Consultant study visit to ILO, Geneva publ/documents/publication/wcms_ pdf, p First proposed by Jelle Visser The first part time economy in the world: a model to be followed. in the Journal of EU Social Policy publ/documents/publication/wcms_ pdf, p

266 13. Conclusions and policy implications The research indicates that all countries considered in the study have made serious efforts to reduce discrimination in the workplace in recent years, but all need to continue to innovate methods to educate and to combat both classic discrimination and core discrimination as society and the workplace change. A surprising number of EU member states do not seem to make their annual report on time. We have five principal conclusions: Legal frameworks without continuing consciousness-raising and education about the kinds of discrimination which can occur in the workplace are not effective. Education consists of both reminding those who are discriminated against, that they have legal rights to a recruitment process and a workplace which are free from discrimination, and reminding employers large and small that they have a legal, ethical duty to provide a discrimination free environment which in turn makes an organization function better. Encourage active debate with the social partners and other stakeholders and further study the ecosystem, in order to enhance awareness for all stakeholders and especially for the gatekeepers, about how the system should work properly to achieve better outcomes. Institutions tasked with encouraging and enforcing compliance with a discrimination free environment, HR departments within organizations, and Ministries, inspectors and equality bodies need to increase and enhance their cooperation platforms, to work together and refresh monitoring processes. Where there are holdouts within government policy especially regarding political discrimination the ILO and concerned NGOs need to lobby harder for greater fairness. Consider tax adjustments for groups who are discriminated against. This both encourages thinking about the monetization of the costs of discrimination. The Project Team was concerned that good data about households headed by working women is not apparently available, but in this case, wherever the gender pay gap exists, there is inter-household discrimination so children or other dependents suffer indirect discrimination because of the gender pay gap. 266

267 The project team attempted to obtain reliable information on each topic covered. We would have liked to quantify number and impact more clearly, but could not find the information either in scattered data sources or in multilateral agencies. Our best evidence comparing across the 29 countries often rested on statistics compiled by OECD, UN bodies including the ILO, EUROSTAT, the IBRD and bodies like the World Economic Forum which included weighted indices where the full data was not easily obtainable, but where the team would have liked to test the impact of different weightings. We believe that the ILO might consider collecting equality body data of the number of cases brought about workplace discrimination issues. All these tasks are important and urgent. The rise of so called political populism across the world is a reminder that the task of keeping a fair society in which human rights are the keystone, which has been the foundation of western society from 1945 to the present is constantly under challenge and achieving harmony in one decade does not guarantee its continuity without proactive vigilance. 267

268 References European Union Networks of Experts Reports European network of legal experts in gender equality and non-discrimination (2016), A comparative analysis of non-discrimination law in Europe 2015, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: / European network of legal experts in gender equality and non-discrimination Prepared by Alexandra Timmer and Linda Senden (2016), Gender equality law in Europe, How are EU rules transposed into national law in 2015?, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1,Doi: / European network of legal experts in gender equality and non-discrimination Written by Alexandra Timmer and Linda Senden (2016), A comparative analysis of gender equality law in Europe 2015, A comparative analysis of the implementation of EU gender equality law in the EU Member States, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia and Turkey, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: / European network of legal experts in gender equality and non-discrimination Prepared by Delia Ferri, Maynooth University and Anna Lawson, University of Leeds (2016), Reasonable accommodation for disabled people in employment, A legal analysis of the situation in EU Member States, Iceland, Liechtenstein and Norway, European Commission, Directorate- General for Justice and Consumers, Directorate D Equality, Unit JUST/D1,Doi: / European network of legal experts in gender equality and non-discrimination (2015), European equality law review Issue 1 / 2015, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: / European network of legal experts in gender equality and non-discrimination (2015), European equality law review Issue 2 / 2015, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: /11170 European network of legal experts in gender equality and non-discrimination Written by Aileen McColgan (2015), Measures to address the challenges of work-life balance in the EU Member 268

269 States, Iceland, Liechtenstein and Norway, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: / European Network of Legal Experts in The Field of Gender Equality Catherine Barnard and Alysia Blackham (2015), Self-Employed, The implementation of Directive 2010/41 on the application of the principle of equal treatment between men and women engaged in an activity in a selfemployed capacity, European Commission, Directorate-General for Justice and Consumers, Directorate D Equality, Unit JUST/D1, Doi: / European Network of Legal Experts in the non-discrimination field Written by Aileen Mc Colgan Supervised by Migration Policy Group (2013), National protection beyond the two EU Antidiscrimination Directives, The grounds of religion and belief, disability, age and sexual orientation beyond employment, European Commission, Directorate-General for Justice, Doi: / European Network of Legal Experts in the Non-discrimination Field Prepared by Isabelle Chopin and Catharina Germaine-Sahl (2013), Developing Anti-discrimination Law in Europe, The 28 EU Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and Turkey compared, European Commission, Directorate General for Justice, Doi: / European Network of Legal Experts in the non-discrimination Field Written by Colm O Cinneide Supervised by Christa Tobler (2012), The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC, European Commission, Directorate-General for Justice, Doi: /38584 European Network of Legal Experts in The Field of Gender Equality Annick Masselot, Eugenia Caracciolo Di Torella and Susanne Burri (2012), Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood, The application of EU and national law in practice in 33 European countries, European Commission, Directorate-General for Justice, Unit JUST/D1, Equal Treatment Legislation, Doi: / European Network of Legal Experts in The Field of Gender Equality Ann Numhauser-Henning and Sylvaine Laulom (2012), Harassment related to Sex and Sexual Harassment Law in 33 European Countries, Discrimination versus Dignity, European Commission, Directorate-General for Justice, Unit JUST/D1, Equal Treatment Legislation. Doi: /

270 European Network of Legal Experts in the non-discrimination Field Written by Declan O Demplsey and Anna Beale (2011), Age and Employment, European Commission, Directorate-General for Justice, Doi: / European network of legal experts in the non-discrimination Field written by Olivier de Schutter (2011), The Prohibition of Discrimination under European Human Right Law, Relevance for the EU non-discrimination directives an update, European Commission, Directorate-General for Justice, Doi: / European Network of Legal Experts in the Field of Gender Equality Susanne Burri and Hanneke van Eijken (2011), The Transposition of Recast Directive 2006/54/EC Update 2011, European Commission, Directorate-General for Justice, Unit JUST/D1, Equal Treatment Legislation, Doi: / Network of socio-economic experts in the anti-discrimination field written by Barbara van Balen, Niall Crowley, Ronald Holzhacker (2011), Syntesis Report I 2011, Older Workers, Discrimination and Employment, Available at: European Network of Legal Experts in the Non-Discrimination Field Emmanuelle Bribosia 1 and Isabelle Rorive (2010), In search of a balance between the right to equality and other fundamental rights, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities Unit G.2, Doi: /3354. European Network of Legal Experts in The Field of Gender Equality Sacha Prechal and Susanne Burri (2010), EU Rules on Gender Equality: How are they transposed into national law?, European Commission, Directorate-General for Justice, Unit JUST/D/2, Theme Equal Treatment Legislation. Available at: Human European Consultancy in partnership with the Ludwig Boltzmann Institute of Human Rights written by Margit Ammer, Niall Crowley, Barbara Liegl, Elisabeth Holzleithner, Katrin Wladasch, Kutsal Yesilkagit (2010), Syntesis Report, Study on Equality Bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC, Available at: 270

271 Expert Group on Gender Equality and Social Inclusion, Health and Long-Term Care Issues (EGGSI) (2010), Violence against women and the role of gender equality, social inclusion and health strategies, Synthesis Report EGGSI coordinating team Chiara Crepaldi, Manuela Samek Lodovici, Marcella Corsi In collaboration with: Sandra Naaf, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G1, Doi: / European Network of Legal Experts in The Field of Gender Equality written by Christopher McCrudden and Sacha Prechal (2009), The Concepts of Equality and Non-Discrimination in Europe: A practical approach, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Available at: Sacha Prechal and Susanne Burri (2009), EU Rules on Gender Equality: How are they transposed into national law?, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Doi: /34410 European Network of Legal Experts in the Field of Gender Equality Sandra Fredman (2009), Making Equality Effective: The role of proactive measures, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit EMPL/G/2, Theme Equality, Action against Discrimination: Legal Questions, Available at: European Network of Legal Experts in the Non-Discrimination Field Timo Makkonen (2007), Measuring Discrimination Data Collection and EU Equality Law, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Available at: European Network of Legal Experts in the Non-Discrimination Field Rikki Holtmaat (2007), Catalyst for Change?, Equality Bodies according to Directive 2000/43/EC Existence, independence and effectiveness, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Available at: European Network of Legal Experts in the Non-Discrimination Field Lucy Vickers (2006), Religion and Belief Discrimination in Employment the EU law, European Commission, Directorate- 271

272 General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Available at: European Network of Legal Experts in the Non-Discrimination Field Lilla Farkas (2007), Segregation of Roma Children in Education, European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Available at: European Union Institutions European Commission (2015), Report on equality between women and men 2015, Justice and Consumers, Doi: / European Commission (2015), Overview of youth discrimination in the European Union, Directorate-General for Justice and Consumers, Directorate D Equality, Unit D.3 Non discrimination policies and Roma coordination, Doi: / European Commission (2015), Commission Staff Working Document, Strategic engagement for gender equality , SWD(2015) 278 final, Brussels, Available at: European Institute for Gender Equality (EIGE) (2015), Gender Equality Index 2015, Measuring gender equality in the European Union , Doi: / European Commission (2014), Report From the Commission to the European Parliament and the Council Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ( Racial Equality Directive ) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ( Employment Equality Directive ), {SWD(2014) 5 final}, COM(2014) 2 final, Available at: European Union Agency for Fundamental Rights (2014), Roma survey Data in focus, Poverty and employment: the situation of Roma in 11 EU Member States, Doi: /

273 European Commission (2011), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Framework for National Roma Integration Strategies up to 2020, Brussels, , COM(2011) 173 final, Available at: European Commission (2011), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Agenda for the Integration of Third-Country Nationals {SEC(2011) 957 final}, Brussels, , COM(2011) 455 final, Available at: European Parliament (2013), Report on effective labour inspections as a strategy to improve working conditions in Europe (2013/2112(INI)), Committee on Employment and Social Affairs, Rapporteur: Jutta Steinruck, Available at: DOC+XML+V0//EN The European Federation of Public Service Unions (EPSU) (2012), A mapping report on Labour Inspection Services in 15 European countries, A SYNDEX report for the European Federation of Public Service Unions (EPSU), Available at: on_services.pdf European Commission (2011), Strategy for equality between women and men , Document drawn up on the basis of COM (2010) 491 final, SEC (2010) 1079 and SEC(2010) 1080, Doi: / European Commission (2011), Communication COM(2011) 455 final, Brussels, , Available at: European Union Agency for Fundamental Rights and Council of Europe (2010), Handbook on European non-discrimination law, Luxembourg, Doi: / European Commission written by Petra Foubert (2010), The Gender Pay Gap in Europe from a Legal Perspective, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.2, Doi: /

274 European Commission (2010), Trade union practices on anti-discrimination and diversity, DG for Employment, Social Affairs and Inclusion, Report prepared by Working Lives Research Institute and London Metropolitan University, Luxembourg: Publications Office of the European Union. European Commission written by Colm O Cinneide (2005), Age discrimination and European Law, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit D.3, Available at: International Labour Organization and Other International Institutions International Labour Office (2016), Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Third item on the agenda: Information and reports on the application of Conventions and Recommendations, Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 105th Session, 2016, Geneva. Available at: relconf/documents/meetingdocument/wcms_ pdf International Labour Office (2012), General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, Third item on the agenda: Information and reports on the application of Conventions and Recommendations, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), International Labour Conference, 101st Session, 2012, Geneva. Available at: ment/wcms_ pdf International Labour Office (2011), Equality at work: The continuing challenge, Report of the Director General, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference 100th Session 2011, Report I(B), Geneva, Available at: 3/lang--en/index.htm 274

275 International Labour Organization (2010), Building modern and effective labour inspection systems, International Labour Office Geneva, International Training Centre of the ILO Turin, Available at: lab_admin/documents/instructionalmaterial/wcms_ pdf Politakis, George P. (2007), Protecting labour rights as human rights : present and future of international supervision: proceedings of the international colloquium on the 80th anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations, Geneva, November 2006 / edited by George P. Politakis, International Labour Office, Geneva. Available at: United Nations Development Programme (UNDP) (2015), Human Development Report 2015, Work for Human Development, New York, Available at: United Nations Development Programme (UNDP) (2010), Human Development Report (HDR), New York, Oxford University Press, Available at: United Nations Development Programme (UNDP) (1995), Human Development Report (HDR), New York, Oxford University Press, Available at: United Nations Development Programme (UNDP) (1990), Human Development Report (HDR), New York, Oxford University Press, Available at: United Nations Development Programme, Gender Development Index, Available at: World Economic Forum (2015), The Global Gender Gap Report 2015, Geneva, Available at: World Economic Forum (2006), The Global Gender Gap Report 2006, Geneva, Available at: 275

276 Consiliului Naţional pentru Combaterea Discriminării (2013), Raport de Actvivitate 2012, Bucharest, Available at: Decade of Roma Inclusion Secretariat Foundation (2015), Roma Inclusion Index 2015, Budapest, Hungary, Available at: International Labour Organization (2016), NORMLEX Information System on International Labour Standards, Reports requested and replies to CEACR comments: C111 - Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Available at: _ID: International Labour Office, Convention no. 111 adopted in Geneva on 25 June 1958 at the 42nd International Labor Conference. The text of the convention is available at: D,P12100_LANG_CODE:312256,en European Union Treaties and Directives CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION (2012), Official Journal of the European Union, C 326/13, CONSOLIDATED VERSION OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (2012), Official Journal of the European Union C 326/47, CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2010/C 83/02) (2010), Official Journal of the European Union, C 83/389, COUNCIL DIRECTIVE 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000), Official Journal of the European Union, L 180/22, COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2000), Official Journal of the European Union, L 303/16,

277 COUNCIL DIRECTIVE 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (2010), Official Journal of the European Communities, L 68/13, COUNCIL DIRECTIVE 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (1997), Official Journal of the European Communities, L 14/6, COUNCIL DIRECTIVE of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (75/ 1 17/ EEC) (1975), Official Journal of the European Communities, No L 45/ 19, COUNCIL DIRECTIVE of 9 February 1976 on the implementation of the principle of equal treatment for men' and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC) (1976), Official Journal of the European Communities, No L 39/40, DIRECTIVE 2006/54/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (2006), Official Journal of the European Union, L 204/23, Other Sources Council of Europe, Eurostat Database, Available at: European Social Charter, Equal Treatment Commission Austria Equinet, Gender Equality in Ireland, Interfederal Centre for Equal Opportunities (Unia) Belgium 277

278 International Labour Office, International Standard Classification of Occupations 2008 (ISCO-08), Institute for the Equality for Women and Men Belgium László ANDOR European Commissioner responsible for Employment, Social Affairs and Inclusion Labour Mobility in the European Union The Inconvenient Truth Michell Tony (2016), One Million Jobs Initiative, Seoul. National Office against Racial Discrimination (Ufficio Nazionale Antidiscriminazioni Razziali- (UNAR), National Equality Councillor available in Italian language at: priorita/parita-e-pari-opportunita/focus-on/consigliera-nazionale- Parita/Pagine/default.aspx National Strategy For Gender Equality in the Slovak Republic , Ombuds for Equal Treatment Austria Statistical Classification of Economic Activities in the European Community, Rev. 2 (2008), also known as NACE (Rev.2), EN.PDF The Constitution of the Italian Republic Original text: and the English version available at: consulted on 3 August The Council of Europe Commissioner for Human Rights, The Court of Justice of the European Union (CJEU), The European Agenda on Migration, Available at: 278

279 The European Convention on Human Rights, The European Court of Human Rights, The Court of Justice of the European Union, Mangold v Helm (2005) C-144/04, Ruling of the Court Grand Chamber is available at: ode=lst&dir=&occ=first&part=1&cid= The Court of Justice of the European Union (Grand Chamber) of 11 July 2006 in the case C-13/05 Chacón Navas v. Eurest Colectividades SA, Available at: ode=lst&dir=&occ=first&part=1&cid= The European Integration Forum, Available at: The Equality Ombudsman Sweden The Global Approach to Migration and Mobility, Available at: The Swedish Trade Union Confederation (LO), The National Council for Combating Discrimination (Consiliul National pentru Combaterea Discriminarii - CNCD) (Romanian language) The Romanian Constitution The Romanian Labour Code (English translation) available at: The Public Defender of Rights Czech Republic

280 Annex I - ILO Convention 111, Convention concerning Discrimination in Respect of Employment and Occupation (1958) Preamble The General Conference of the International Labour Organisation, Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Forty-second Session on 4 June 1958, and Having decided upon the adoption of certain proposals with regard to discrimination in the field of employment and occupation, which is the fourth item on the agenda of the session, and Having determined that these proposals shall take the form of an international Convention, and Considering that the Declaration of Philadelphia affirms that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity, and Considering further that discrimination constitutes a violation of rights enunciated by the Universal Declaration of Human Rights, adopts this twenty-fifth day of June of the year one thousand nine hundred and fifty-eight the following Convention, which may be cited as the Discrimination (Employment and Occupation) Convention, 1958: Article 1 1. For the purpose of this Convention the term discrimination includes-- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies. 280

281 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 3. For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Article 2 Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. Article 3 Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice-- (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy; (b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy; (c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy; (d) to pursue the policy in respect of employment under the direct control of a national authority; (e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority; (f) to indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action. Article 4 Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the 281

282 individual concerned shall have the right to appeal to a competent body established in accordance with national practice. Article 5 1. Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination. 2. Any Member may, after consultation with representative employers' and workers' organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination. Article 6 Each Member which ratifies this Convention undertakes to apply it to non-metropolitan territories in accordance with the provisions of the Constitution of the International Labour Organisation. Article 7 The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration. Article 8 1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General. 2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General. 3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification has been registered. Article 9 1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered. 282

283 2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article. Article The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation. 2. When notifying the Members of the Organisation of the registration of the second ratification communicated to him, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force. Article 11 The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles. Article 12 At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part. Article Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides: (a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 9 above, if and when the new revising Convention shall have come into force; 283

284 (b) as from the date when the new revising Convention comes into force, this Convention shall cease to be open to ratification by the Members. 2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention. Article 14 The English and French versions of the text of this Convention are equally authoritative. Available on the website of the ILO here: _LANG_CODE:312256,en 284

285 Annex II Challenges identified by ILO in Direct Requests and Observations addressed to the 28 member states of the EU and the Republic of Korea ( ) Country Main issues addressed and challenges identified in Direct Requests and Observations of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and in Individual Cases addressed by Committee of Application of Standards (CAS) 1. AUSTRIA 12 Direct Requests (year of publication): 2013, 2010, 2008, 2006, 2004, 2003, 2001, 1998, 1996, 1994, 1992 and Observations (year of publication): 1996, 1994, 1992 and 1989 Discrimination of persons with disabilities challenge: High number of conciliation proceedings for cases regarding various forms of discrimination on persons with disabilities; The grounds of Social Origin and Political opinion were not explicitly included in the legislation adopted to ensure equal treatment and non-discrimination. Still, social origin could be covered under section 7(1) of the Constitution closed to grounds of birth, status or class and the political opinion ground could be protected under the ground of belief (Weltanschauung); 285

286 BELGIUM 12 Direct Requests 2013, 2011, 2009, 2007, 2004, 2003, 2001, 1998, 1996, 1993, 1992 and Observations 2009, 2004, 2001 and Challenge of discrimination based on sex: Research conducted by the Equality between Men and Women Institute has concluded that pregnant workers face discrimination at work. The 2011 Act prohibiting the wearing of any clothing that entirely or largely conceals the face could trigger discriminatory practices toward muslim women workers; Increase in sexual harassment complaints; Gender Equality challenges: Vertical and horizontal segregation remain issues in the labour market. Good Practices: Collective agreements that include provisions about combating discrimination and ensuring equality. The gender test - assessment of the impact on women and men carried out before the adoption of draft legislation and regulatory bills. The Equality Diversity Label created to enhance diversity in the working place and to fight against discrimination. 3. BULGARIA 1 Individual case Direct Requests 2013, 2012, 2010, 2009, 2007, 2005, 2003, Gender Equality challenge: High difference in participation into the labour market between women and men. 286

287 2001, 1998, 1996, 1992, 1991 and Observations 2012, 2010, 2009, 2007, 2005, 2003, 2001, 1998, 1996, 1993, 1992, 1991 and Challenge of Roma minority: 1. Difficulties in accessing the labour market for people from Roma minority; 2. Segregation of children in special kindergartens and schools. Limited assessment and follow up of implementation and enforcement of provisions regarding sexual harassment included in the legislation. Challenge in gathering the statistics about ethnicity of jobseekers; Delay in sending the National Report to ILO. 4. CROATIA 14 Direct Requests (year of publication): 2016, 2013, 2012, 2011, 2010, 2009, 2007, 2004, 2002, 2000, 1999, 1998, 1996 and Gender Equality challenges: 1. Employability and labour market participation of women with low level of education, and women belonging to national minority groups; 2. Enhancing women s access to management positions and to a wider choice of educational and vocational opportunities; 287

288 10 Observations (year of publication): 2016, 2013, 2012, 2010, 2009, 2007, 2004, 2002, 2000 and Increase awareness about the protection against sexual harassment at work and procedures to report or to raise complaints Roma challenges: 1. The low education level of Roma represents one of the main obstacles in access to employment; 2. Limited information about Roma labour market situation determined by the tendency of the Roma not to disclose their minority identity; National minorities challenge: Reduced participation and employment in state administration; Institutional challenges: 1. The Labour Inspectorates have an indirect jurisdiction on discrimination issues; 2. The need to strengthen the role of social partners in addressing discrimination. The delay in submission of Country Reports was raised. 5. CYPRUS 17 Direct Requests: 2016, 2013, 2011, 2008, 2007, 2005, 2004, 2003, 2002, 2000, 1999, 1998, 1996, 1995, 1993, 1991 and Social origin challenge: This ground in not include and protected in the equality legislation; (Although it could be protected under section 28 (2) of the Constitution Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on 288

289 4 Observations: 2007, 2005, 1999 and any ground whatsoever, unless there is express provision to the contrary in this Constitution. Gender Equality challenge: Vertical and horizontal gender segregation in employment; Sexual harassment challenge: The need to prevent and eliminate sexual harassment against domestic workers; Challenge on the grounds of race, colour or national extraction: Labour market participation of specific groups, namely: Roma, Pontian Greeks, Turkish Cypriots and third-country nationals. Inherent job requirements challenge: The list of excluded occupations from its provisions on access to employment, vocational training and self-employment included in the Law on Equal Treatment of Men and Women in Employment and Vocational Training; 289

290 6. CZECH REPUBLIC 3 Individual Cases: 2016, 2010 and Direct Requests: 2016, 2013, 2012, 2009, 2008, 2006, 2003, 1999, 1997 and Observations: 2016, 2013, 2012, 2010, 2009, 2008, 2006, 2004, 2003, 2002, 2001, 1999, 1997, 1996, 1992 and Anti-discrimination legislation challenge: The Labour Code prohibits discrimination but doesn t explicitly includes the grounds protected and it needs to be read along with the Anti-Discrimination Act. The grounds of political conviction and membership or activity in political parties, trade unions or employers organizations were protected under the previous legislation but not anymore under the new one; Discrimination on the basis of political opinion challenge: The Screening Act is identified as a violation of this principle. This Law limits the access in specific roles in the public sector for persons actively engaged with the Communist regime before 1989 as high hierarchy members of the Communist party and those in the repressive apparatus. Gender equality challenge: Horizontal and vertical occupational segregation by sex in the labour market; Roma Challenges: 1. Integration into the labour market and low recognition of belonging to minority in 2011 national census only 5,199 persons declared themselves as Roma whereas in 2010 the number of people in the Roma community was estimated at 183, Overrepresentation of roma children in schools for children with disabilities in 2007, the European Court of Human Rights had ruled that the Czech Republic had discriminated against children of Roma origin by routinely placing them, on the basis of discriminatory tests, in special schools for children with learning difficulties, thereby preventing them from following the mainstream school curriculum in integrated schools. The delay in submission of Country Reports was raised; 290

291 7. DENMARK 17 Direct requests: 2016, 2013, 2012, 2011, 2009, 2007, 2003, 2002, 2001, 2000, 1999, 1998, 1996, 1995, 1993, 1991 and Observations: 2016, 2003, 1993, 1991 and Discrimination based on the ground of sex challenge: High number of cases relating to dismissal on the ground of pregnancy or maternity leave; Discrimination based on religion: A case decided by the Supreme Court decision No.U H - indirect discrimination based on religion, decision in the case of a muslim woman dismissed for beginning to come to work with a head scarf. Good Practices and results related to immigrants integration: 1. Adoption of Act No of 23 September 2013 consolidating Act No on integration, which provides for a three-year introduction programme for immigrants, including career guidance and qualification, a trainee programme and wage subsidies; 2. Consultation and adoption of agreement on integration focusing on strengthening immigrants language skills and knowledge about vocational education was signed in June 2014 between the Government (Ministries of Employment and Education), Local Government Denmark, the Confederation of Danish Employers (DA) and the Danish Confederation of Trade Unions (LO); 3. Action Plan on Ethnic Equal Treatment and Respect for the Individual (2013) The delay in submission of Country Reports was raised; 291

292 8. ESTONIA 3 Direct requests: 2013, 2011 and Legislative challenge: Political opinion and social origin grounds are not explicitly included in the Equal Treatment Act and the Public Service Act; Gender equality challenge: 1. Horizontal and vertical occupational segregation by sex in the labour market; 2. Strong stereotypes about the roles of women and men at work and in the family; 292

293 9. FINLAND 12 Direct requests: 2013, 2011, 2009, 2007, 2005, 2003, 2001, 1998, 1996, 1993, 1992 and Observations: 2013, 2003, 2001 and Gender equality challenge: 1. High gender occupational segregation and gender segregation in education, career choices and the labour market; 2. Discrimination based on pregnancy in the context of temporary and fixed-term employment relationships; Challenges of discrimination in terms of race and ethnic minorities: 1. Issues with discrimination faced by the Somali community; 2. Integration and access to employment for the Russian speaking community and for Russian-named jobseekers; 3. Access to traditional occupations for the Sámi people; 4. Difficulties faced by Roma peoples in accessing education, vocational training or the labour market; 293

294 10. FRANCE 14 Direct requests: 2013, 2012, 2011, 2008, 2006, 2005, 2003, 2001, 1998, 1997, 1996, 1993, 1991 and Observations: 2013, 2012, 2011, 2008, 2006, 2005 and Legislative challenge: 1. Social origin ground is not explicitly included in the Labour Code in the list of ground protected against discrimination; 2. The definition of sexual harassment in the Labour Code in not clear enough; 3. Act prohibiting persons to wear any conspicuous religious signs or apparel in public schools could lead to discriminatory practices. A similar outcome could be produced by the Act prohibiting the concealment of the face in public places; Gender equality challenge: Persistent horizontal and vertical occupational segregation, pay gaps and difficulties in career progression faced by women; Challenges regarding discrimination on grounds of race, colour and national extraction: 1. Difficulties in ensuring the integration and access to the labour market for the Travellers group and for the Roma ethnic migrants; 2. Hurdles in access to employment for young French nationals of foreign origin; Challenge in ensuring equality of opportunity and treatment for persons with disabilities in education and vocational training; The delay in submission of Country Reports was raised; 294

295 11. GERMANY 2 Individual Cases: 1989 and Direct requests: 2014, 2013, 2011, 2009, 2007, 2004, 2003, 2000, 1998, 1996, 1994, 1992 and Observations: 2007, 2000, 1998, 1996, 1995, 1994, 1993, 1992 and Gender Equality challenges: 1. Representation of women in decision making positions in the private sector; 2. Obstacles faced by women in career advancement; Discrimination based on disability challenge: Persons with disabilities face significant challenges in accessing the labour market; Race, colour or national extraction challenge: Integration of persons with a migrant background into the labour market. Good Practice: Depersonalized application system (pilot project) - selection of applicants by withholding the applicant s photograph, name, date of birth and marital status until a decision had been made on whether to invite the candidate for an interview, good outcomes for women and persons with migrant background; Challenge regarding discrimination on the ground of political opinion has been overcome. It was related with access to the public service of persons who were involved in the activities of the Ministry of State Security or the Office for National Security of the former German Democratic Republic; 295

296 12. GREECE 11 Direct requests: 2015, 2009, 2007, 2005, 2003, 2001, 1998, 1996, 1993, 1991 and Observations: 2015, 2013, 2012, 2011, 2009, 2007, 2005, 2003, 2001, 1993, 1991 and Impact of the Crisis challenges: 1. High number of contracts that were changed from full-time contracts in either part-time or rotation contracts by unilateral decision or by agreement; 2. Impact of the austerity measures on equality of opportunity and treatment in both public and private sector employment; 3. Delays in the administration of justice that discourage workers from bringing complaints to the courts; Gender Equality challenges: Gender based stereotypes that tend to produce gender based exclusion; Roma and Greek Muslims Challenge: Integration of Roma minority and Greek Muslims into the labour market; Good Practice: 1. Gender Index System along with the Integrated Information System contributes to the identification of areas where gender inequalities are prevalent; 2. Training activities carried out by the General Secretariat for Gender Equality, in collaboration with the Ombudsman on gender equality for labour inspectors; 296

297 13. HUNGARY 14 Direct requests: 2014, 2013, 2012, 2011, 2009, 2007, 2005, 2003, 2000, 1996, 1995, 1993, 1991 and Observations: 2014, 2009, 2007, 2005, 2003, 2000, 1998, 1996, 1993 and Gender equality and sex discrimination challenges: 1. Protection against sexual harassment is not included in the Labour Code. It is only covered through the Equal Treatment Act which could lead to a reduce protection against such practices in employment and occupation; 2. Low participation of women in the labour market and the persistence of stereotyped division of gender roles in family and society; 3. Women face difficulties in access to the remedies provided in cases of sexual harassment; Roma minority challenge: 1. Segregation of Roma pupils at school and their overrepresentation in special schools; 2. Deeply rooted stereotypes that impede full participation of the Roma into the labour market; Labour inspectorates and labour Code challenges: 1. Legislative act of 2012 which limited the competencies in addressing discriminatory practices, it could only act upon the lodging of a complaint; 2. Discrimination is not explicitly prohibited through the labour code and none of the prohibited grounds in Convention no.111 were included; Good Practice: Developing Equal opportunity plans represent a legal obligation for the businesses in the private sector. 297

298 14. IRELAND 8 Direct requests: 2014, 2013, 2012, 2011, 2010, 2009, 2007 and Observations: 2014, 2013, 2012, 2011, 2010 and Gender equality challenge: 1. Constitutional provisions that could trigger stereotypical treatment of women in employment and occupations - the State recognizes that by her life within the home, woman gives to the State a support without which the common good cannot be achieved and that the State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home (Article 41.2); 2. Women experiencing unfair treatment in employment during pregnancy; Discrimination based on political opinion or social origin challenge: In the Employment Equality Act the grounds of political opinion and social origin were not covered and protected against discrimination; Challenge for people with disabilities: Low labour market participation for people with a physical or emotional/psychological disability, and higher work-related discrimination for people with an intellectual/learning disability; Race, colour and national extraction challenge: Discrimination against members of the Traveller community; The delay in submission of Country Reports was raised; 298

299 15. ITALY 15 Direct requests: 2014, 2013, 2011, 2009, 2007, 2005, 2003, 2000, 1998, 1996, 1995, 1993, 1992, 1991 and Observations: 2014, 2013, 1995, 1993 and Gender Equality challenges: 1. Gender segregation in certain economic sectors and occupations; 2. Sexual harassment issues in some regions of the country; 3. Under representation of women in certain positions in the public administration; 4. High number of women that resign from their jobs during pregnancy and maternity; Discrimination based on race, colour or national extraction: Immigrants continue to be victims of discrimination with respect to access to employment and in the workplace; Roma, Sinti and Travellers challenge: Discrimination and integration of Roma, Sinti and Travellers (Caminanti) communities in employment and occupations; Challenge of discrimination based on grounds of disability, sexual orientation and gender identity: High number of complaints referred to the Equality Body (UNAR) on discriminatory acts based on sexual orientation and disability; Good Practices: 1. Charter for Equal Opportunities to which private enterprises and public administrations have adhered engaging in fighting against discrimination based on gender, disability, race, religion and sexual orientation. This Charter has been implemented since 2011 through regional committees open to multiple stakeholders and covers more than 700,000 workers; 2. Centre for the research and monitoring of xenophobia and racial and ethnic discrimination (CERIDER) 299

300 16. LATVIA 8 Direct requests: 2015, 2014, 2011, 2009, 2007, 2005, 2002 and Observations: 2015, 2014, 2011, 2009, 2007, 2005, 2002 and Gender Equality challenge: Vertical and horizontal occupational sex segregation in employment and occupation; Minority groups and Roma challenges: 1. Inclusion and participation of minority groups and Roma in education, vocational training, employment and occupation; 2. Discriminatory effects of the language proficiency requirement for specific occupations established through law on the employment of minority groups; Discrimination on the basis of political opinion: Prohibition on accessing in any civil service position for persons that is not or has not been in a permanent staff position, in the state security service, intelligence or counterintelligence service of the USSR, the Latvian Soviet Socialist Republic (SSR) or some foreign State (section 7(8)), or the persons concerned are not or have not been members of organizations banned by laws or court rulings (section 7(9)). Colour and social origin challenge: These grounds are not in the list included in the Law on Prohibition of Discrimination of Natural Persons Engaged in Economic Activity; Good Practice: Involvement of labour inspectorates in ensuring equality of treatment in employment. Organising on a regular basis learning activities for the labour inspectors in order to enhance their capacity in detecting and proving discrimination and discriminatory practices; 300

301 17. LITHUANIA 9 Direct requests: 2014, 2012, 2010, 2007, 2005, 2002, 2000, 1998 and Observations: 2010, 2007 and Discrimination on the basis of political opinion: Restrictions in access to civil service and specific occupations in the private sector of former staff officers of the USSR State Security Committee (NKVD, NKGB, MGB, KGB); European Court of Human Rights ruled in two cases Sidabras and Džiautas v. Lithuania (2007) and in Rainys and Gasparavičius v. Lithuania (2005) that the restrictions to apply for private sector jobs or to be dismissed from these jobs on the ground of being an ex-state Security Committee staff violated the rights of complainants under article 14 (prohibition of discrimination) in conjunction with article 8 (private life) of the European Convention on Human Rights. Gender equality challenges: 1. Vertical and horizontal occupational segregation between men and women in the labour market; 2. Difficult procedure for proving and complaining in cases of sexual harassment; Minority groups and Roma challenges: 1. Specific language requirements for accessing to jobs in the public sector; 2. Problems faced by the Roma community in fully participating to education and employment; 301

302 18. LUXEMBURG 7 Direct requests: 2014, 2013, 2012, 2011, 2010, 2008 and Observations: 2014 and Gender equality challenges: 1. High discrepancies between the participation of women and men into the labour market; 2. Preventing and combating sexual and other forms of harassment effectively; 3. Combating sexist stereotypes and prejudices concerning the role of women in society and about their professional aptitudes; Legislation challenges: 1. Weak implementation of anti-discrimination laws and inappropriate legal remedies available for victims; 2. The grounds of colour, political opinion, national extraction or social origin are not directly covered under the legislation which defines and prohibits discrimination in employment and occupation; The Penal Code punish discriminatory acts related to all the ground of the Convention no.111 and in access to work, vocational training, working conditions and affiliation with or engagement in a workers or employers organization; The delay in submission of Country Reports was raised; 302

303 19. MALTA 20 Direct requests: 2015, 2014, 2012, 2011, 2010, 2009, 2008, 2007, 2005, 2003, 2001, 2000, 1999, 1998, 1996, 1995, 1994, 1993, 1992 and Observations: 2014, 2012, 2007, 2005, 1994, 1993 and Discrimination on the ground of Social origin challenge: The ground of social origin is not include/ protected specifically through legislation or practical measures; Gender Equality challenges: 1. Sex preferences in recruitment processes and a pre-1980 requirement for female public officers to resign due to marriage and the negative consequences of this measure on pension remuneration; 2. Childcare facilities availability was identified as a significant obstacle to women s participation in the labour market; 3. Sexual harassment issues remain problematic; The delay in submission of Country Reports was raised; 303

304 20. NETHERLANDS 14 Direct requests: 2014, 2012, 2009, 2008, 2006, 2002, 2000, 1998, 1997, 1996, 1995, 1993, 1991 and Observations: 2014, 2012, 2009, 2008, 2006, 2002 and Discrimination on the ground of social origin challenge: This ground is not specifically covered in legislation, still is protected under the Constitutional provision on any grounds whatsoever ; Gender equality challenge: Differences in employment between women and men, especially in the type of employment as women tend to be more present in parttime jobs. Ethnic minorities integration challenge: Reduced labour force participation of non- Western minorities, especially Turkish, Moroccan and Antillean origin persons; 304

305 21. POLAND 1 Individual Case: Direct requests: 2015, 2011, 2009, 2007, 2006, 2003, 2001, 1998, 1997, 1995, 1993, 1992 and Observations: 2007, 2006, 2003, 1995, 1993, 1992 and Gender Equality challenges: 1. Reduced participation of women into the labour market compared with the level of men; 2. Issues of sexual harassment and difficult procedures to prove such cases; 3. Gender-based discrimination cases related to employment identified by the labour inspectors; Roma challenges: Social marginalization and limited participation of Roma in education, vocational training, employment and occupation; Challenges with discrimination on various grounds: 1. Discriminatory practices in announcing job vacancies by employment agencies, including requirements based on ground such as age, gender and nationality; 2. Discrimination on the ground of social origin is not specifically included in the Labour Code. 305

306 22. PORTUGAL 11 Direct requests: 2015, 2012, 2009, 2007, 2006, 2003, 2000, 1996, 1993, 1992 and Observations: 2006, 2003, 2000, 1998, 1996 and Gender Equality Challenge: Persistent vertical and horizontal occupational segregation in the labour market, the gender pay differentials and the inequitable distribution of family responsibilities between men and women; Roma challenge: Roma persons face difficulties in access to labour market and in carrying out specific economic activities ( trader card system for people involved in activities of itinerant trading); The delay in submission of Country Reports was raised; 306

307 23. ROMANIA 3 Individual Cases: 1994, 1993 and Direct requests: 2015, 2012, 2010, 2008, 2006, 2003, 2000, 1998, 1995, and Observations: 2012, 2010, 2008, 2006, 2003, 2000, 1998, 1997, 1996, 1995, 1994, 1993, 1992, 1991 and Gender Equality challenges: 1. Reduced participation of women in the labour market compared with the level of men; 2. Occupational gender segregation issues; Challenge of discrimination based on political opinion: The persons that worked or collaborated with the State Security under the Communist Regime are prohibited from entering the civil service; The European Court of Human Rights in the case Naidin vs. Romania, No.38162/07 decision was that such provision doesn t violate Article 8 and 14 of the European Convention of Human Rights; Roma challenge: 1. The Roma minority faces difficulties in access to education, training and employment; 2. Practices of segregating Roma children within classes and schools; 307

308 24. SLOVAKIA 1 Individual Case: Direct requests: 2015, 2012, 2010, 2008, 2006, 2003, 2002, 2001 and Observations: 2015, 2012, 2010, 2008, 2006, 2003 and Gender Equality challenges: 1. Discriminatory practices consisting of termination of employment due to pregnancy, including during the trial period; 2. High incidence of sexual harassment situations; 3. Obstacles in participation of women into the labour market mainly caused by gender stereotypes and segregation in occupations; Roma challenges: 1. The Roma minority faces difficulties in access to education, training and employment; 2. Practices of segregating Roma children in education, especially over representation in classes and schools for children with intellectual disabilities; Institutional challenge: Inadequate financial and human resources to enhance the contribution of the National Centre for Human Rights (NCHR) in raising awareness on legislative provisions and on assisting victims of racial discrimination; Good practices: 1. Trainings provided to labour inspectors in order to detect discrimination during inspections; 2. Yearly award Employer Friendly to Family, Gender Equality and Equal Opportunities given in order to promote the rights of women workers and reconciliation of family, working and personal life; 308

309 25. SLOVENIA 12 Direct requests: 2015, 2012, 2010, 2007, 2006, 2005, 2003, 2002, 2001, 1998, 1996 and Observations: 2007, 2006, 2005 and Gender equality challenges: 1. High gender segregation in the labour market and overrepresentation of women in education, textiles industry and health care; 2. Difficulties in proving and investigating sexual harassment cases; Discrimination based on national extraction challenge: Difficulties in access to social and economic rights, including education and employment for non-slovenes from the former Socialist Federal Republic of Yugoslavia; European Court for Human Rights in Kuric and others v. Slovenia (Application No /06, 26 June 2012 Roma challenge: Peoples belonging to Roma minority face difficulties in access and integration in education and the labour market. Good Practice: Seminars and trainings organized for judges, state prosecutors and labour inspectors about gender equality, mainstreaming, structural and institutional discrimination. The delay in submission of Country Reports was raised; 309

310 26. SPAIN 10 Direct requests: 2015, 2007, 2005, 2003, 2000, 1999, 1996, 1993, 1991 and Observations: 2015, 2012, 2009, 2007, 2005, 2003, 2001, 2000, 1999, 1998, 1996, 1993, 1991 and Gender equality challenges: 1. Strong impact of the crisis on women employment; 2. Difficulties in reconciling work and family responsibilities and segregation in education and employment; 3. Foreign women face problems in entering the labour market due to limited experience in the formal sector since most of them work in the informal economy; Challenge regarding discrimination based on race, colour, religion and national extraction: Particular difficulties faced by immigrants and the Roma minority in the labour market; Good practice: The system of Equality Label and subsidies provided for the preparation and application of equality plans in large companies; 310

311 27. SWEDEN 19 Direct requests: 2015, 2012, 2010, 2008, 2006, 2005, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1995, 1994, 1993, 1992, 1991 and Observations: 2010, 2002, 2001, 1995, 1994, 1993, 1992, 1991 and Legislative challenge: Discrimination on grounds of political opinion or social origin is not included and prohibited in the Discrimination Act; Gender Equality challenge: Wage gap, vertical and horizontal occupational segregation in the labour market; Discrimination on grounds of race, colour, national extraction and religion challenges: 1. Difficulties in accessing employment and labour market for persons belonging to Roma minority; 2. Other groups that face challenges in employment and occupation are Sami, Swedish Finn, and Tornedaler persons; Good Practice: Gender equality plans that must be drawn up every three years by companies that have more than 25 employees. The delay in submission of Country Reports was raised; 311

312 28. UNITED KINGDOM 7 Direct requests: 2015, 2012, 2011, 2010, 2007, 2006 and Observations: 2015, 2012 and Legislative and procedural challenges: 1. Discrimination on grounds of political opinion is not specifically included in the legislation; 2. Requirement to pay a fee to initiate proceedings in employment tribunals determined a decrease in discrimination complaints; Discrimination on the ground of religion challenges: 1. Problems in access to employment faced by Muslims; 2. The exclusion of teachers from protection against discrimination on the ground of religious belief in Northern Ireland; Gender Equality challenges: 1. High number of women that work part-time compared with the number of males; 2. Occupational segregation and over representation of women in certain sectors; 3. Harassment of servicewomen in the armed forces; Challenge regarding the grounds of race, colour or national extraction and ethnic minorities: Inequalities faced by persons belonging to Gypsies and Travellers minorities, but also Pakistani and Bangladeshi workers; The delay in submission of Country Reports was raised; 312

313 29. KOREA 4 Individual Cases: 2015, 2014, 2013 and Direct requests: 2016, 2015, 2014, 2013, 2012, 2009, 2008, 2007, 2006 and Observations: 2016, 2015, 2014, 2013, 2012, 2009, 2008, 2007 and Legislative and procedural challenges: 1. The grounds of race, colour, and political opinion are not specifically included and protected against discrimination in the Framework Act on Employment Policy from 2015; 2. In order for victims of discrimination to file a complaint against employers, the person who paid the wages and the person who committed the discriminatory act needs to be the same. (This should be checked with Mr. Ahn if it is true) Gender Equality challenges: 1. Reduced participation of women in the labour market compared with the level for men; 2. Horizontal segregation, concentration of women in certain low-wage sectors and high wage gap between women and men; 3. Low representation of women in specific occupations (e.g. police forces). Migrant workers challenges: 1. Ensuring the possibility, in practice, to change workplace when facing a discriminatory practice in employment; 2. Enhancing access to swift complaints procedures and effective dispute resolution mechanisms when confronted with discrimination or discriminatory practices in employment and occupation. Discrimination on the ground of age and disability challenge: High rates of rejection or dismissal of discrimination complaints raised on these grounds; 313

314 Discrimination based on political opinion challenge: Ensuring protection against discrimination on this ground for elementary, primary and secondary school teachers; Discrimination based on employment status challenge: Segregated labour market and discrimination between regular and non-regular workers (fixed-term, parttime and agency workers) with respect to working conditions and wages; Good Practice: Honorary equal employment inspectors that deal with gender discrimination and sexual harassment within workplaces. 314

315 Annex III -Evolution of Activity rates of women (15-64 years) in EU Members States GEO/TIME Malta Italy Romania Greece Poland Croatia Hungary Ireland Belgium Slovakia Bulgaria Luxembourg Czech Republic European Union (28 countries) France Slovenia Spain Cyprus Portugal Austria United Kingdom Lithuania Latvia Estonia Germany Finland Netherlands Denmark Sweden Source: EUROSTAT Database, Labour Force Survey 315

316 Annex IV -Evolution of Employment Rates of women (15-64 years) Evolution of Employment Rates of women (15-64 years) GEO/TIME European Union (28 countries) Belgium Bulgaria Czech Republic Denmark Germany Estonia Ireland Greece Spain France Croatia Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia Slovakia Finland Sweden United Kingdom Source: EUROSTAT Database, Labour Force Survey 316

317 Evolution of Employment Rates of women (15-64 years) Less than primary, primary and lower secondary education (levels 0-2) GEO/TIME European Union (28 countries) Belgium Bulgaria Czech Republic Denmark Germany Estonia Ireland Greece Spain France Croatia Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia Slovakia Finland Sweden United Kingdom Source: EUROSTAT Database, Labour Force Survey 317

318 Evolution of Employment Rates of women (15-64 years) Upper secondary and post-secondary non-tertiary education (levels 3 and 4) GEO/TIME European Union (28 countries) Belgium Bulgaria Czech Republic Denmark Germany Estonia Ireland Greece Spain France Croatia Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia Slovakia Finland Sweden United Kingdom Source: EUROSTAT Database, Labour Force Survey 318

319 Evolution of Employment Rates of women (15-64 years) Tertiary education (levels 5-8) GEO/TIME European Union (28 countries) Belgium Bulgaria Czech Republic Denmark Germany Estonia Ireland Greece Spain France Croatia Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia Slovakia Finland Sweden United Kingdom Source: EUROSTAT Database, Labour Force Survey 319

320 Annex V - Gender pay gap in unadjusted form by NACE Rev. 2 activity - structure of earnings survey methodology in 2014 Gender pay gap in unadjusted form by NACE Rev. 2 activity - structure of earnings survey methodology in 2014 (I) Industry, construction and services (except households as employers and extra-territorial organisations) Industry, construction and services (except public administration, defence, compulsory social security) Business economy Mining and quarrying Manufacturing Electricity, gas, steam and air conditioning supply Water supply; sewerage, waste management and remediation activities Construction Wholesale and retail trade; repair of motor vehicles and motorcycles Transportation and storage Belgium : Bulgaria Czech Republic Denmark Germany Estonia Ireland : : : : : : : : : : Greece : : : : : : : : : : Spain France Croatia Italy : : 10.9 : : : Cyprus Latvia Lithuania Luxembourg : : Hungary Malta : : Netherlands Austria : : : : : : : : Poland Portugal : Romania Slovenia Slovakia Finland Sweden UK

321 Gender pay gap in unadjusted form by NACE Rev. 2 activity - structure of earnings survey methodology in 2014 (II) Accommodation and food service activities Information and communication Financial and insurance activities Real estate activities Professional, scientific and technical activities Administrative and support service activities Public administration and defence; compulsory social security Education Human health and social work activities Arts, entertainment and recreation Belgium : Bulgaria Czech Republic Denmark Germany Estonia Ireland : : : : : : : : : : : Greece : : : : : : : : : : : Spain France Croatia Italy : : 25.9 : 24.8 : : : : Cyprus Latvia : Lithuania Luxembourg : Hungary Malta : Netherlands Austria : : : : : : : : : : : Poland Portugal : Romania Slovenia Slovakia Finland Sweden United Kingdom Source: Eurostat Database Other service activities 321

322 322

323 323