Equality and non-discrimination at work in Cambodia: Manual
ILO Regional Office for Asia and the Pacific
ILO C111 Manual (en)_cover.indd 1 12/5/12 12:10 AM
Equality and non-discrimination at work in Cambodia: Manual
ILO Regional Office for Asia and the Pacific
Copyright © International Labour Organization 2012 First published 2012
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Equality and non-discrimination at work in Cambodia: Manual / ILO Regional Office for Asia and the Pacific. - Phnom Penh: ILO, 2012 288 p.
ISBN: 9789221268277; 9789221268284 (web pdf)
ILO Regional Office for Asia and the Pacific equal rights / equal employment opportunity / gender equality / affirmative action / role of ILO / ILO Convention / Cambodia
04.02.2
Also published in Cambodian: esovePAENnaMGMBIsmPaB nigkarminerIseGIgenAkEnøgkargar enAkñúgRbeTskm<úCa, ISBN 9789228268270; 9789228268287 (web pdf), Phnom Penh, 2012.
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Contents
Contents ______Foreword v ______Acknowledgements vi ______Introduction 1 ______Part I. Equality and non-discrimination: Key concepts 2 1. The equality principle, standards and rationale 2 1.1 The origins of discrimination 2 1.2 Why is equality important for people, society and business? 3 1.3 Key international policy instruments to promote equality 5 1.4 Cambodian legal framework on non-discrimination at work 7 ______2. Discrimination and equality: Concepts and principles 11 2.1 Definition of discrimination in Convention No. 111 and Cambodian Labour Law 11 2.2 What is discrimination at work? – Key concepts 13 2.3 Prohibited grounds of discrimination by Convention No. 111 17 2.4 Other grounds prohibited by national and international standards 22 2.5 Equality and discrimination at different stages of the employment cycle 24 2.6 What does not constitute prohibited discrimination? 33 ______3. Methods of application of Convention No. 111 38 3.1 What are the State’s obligations under the Convention? 38 3.2 Promoting and enforcing Convention No. 111 through policies and legislation 38 3.3. Access to justice and legal protection 46 3.4. Practical measures 51 3.5. Role of social partners and strategic alliances 53 ______Part II. Exercises 58 1. Exercises to start a training workshop 58 Exercise 1. Jigsaw puzzle: Self introduction exercise (Icebreaker) 58 Exercise 2. Inventory of participants’ expectations and contributions 59 ______2. Exercises to initiate discussion on discrimination 60 2.1 Exercises to discuss stereotypes 60 Exercise 3. Be aware of your own bias 60 Exercise 4. What makes a woman? What makes a man? 63 Exercise 5. Gender stereotypes: Facts or opinions 68 Exercise 6. Perceptions on men and women at work 74 Exercise 7. Different approaches to multiculturalism: Game 77 Exercise 8. Identifying discrimination: Group work 79 2.2 Role-plays to experience discrimination 81 Exercise 9. “Do I have a chance to get the job?” Role-play 81 Exercise 10. Rules of the game: Role-play 87
i Equality and non-discrimination at work in Cambodia: Manual
2.3 Exercise to discuss the rationale for equality promotion 89 Exercise 11. Why is equality good for people, society and business? 89 2.4 Exercises to disseminate information on disabilities and health conditions 91 Exercise 12. Disability and ability 91 Exercise 13. Quiz and discussion on HIV 95 ______3. Exercises to discuss key concepts in relation to discrimination 98 3.1 Types of discrimination 98 Exercise 14. What type of discrimination is it? 98 3.2 Inherent requirements of the job 104 Exercise 15. Inherent job requirement or discrimination: Case studies 104 3.3 Approaches and strategies for achieving substantive equality 111 Exercise 16. Protection and equality: Case study 111 Exercise 17. Affirmative action for gender and ethnic equality 115 Exercise 18. Reasonable accommodation: Case studies 122 ______4. Exercises to discuss discrimination at different stages of the employment cycle 127 4.1 Fair recruitment practices 127 Exercise 19. Writing non-discriminatory job advertisements 127 Exercise 20. Discriminatory recruitment practices? Case studies 132
4.2 Pay equity 127 Exercise 21. Equal pay for work of equal value – Job evaluation: Case study 135 Exercise 22. Discrimination in pay and benefits: Case studies 141 4.3 Conditions of work 148 Exercise 23. Identifying harassment at the workplace: Case studies 148 Exercise 24. Employment agencies and equal treatment for workers: Case study 156 4.4 Termination of employment 160 Exercise 25. Termination of employment during pregnancy: Case studies 160 Exercise 26. Retrenchment: Case discussion 170 Exercise 27. Different retirement age for women and men: Case study 173 ______5. Exercises to review strategies for equality promotion 176 5.1 Legislation and local regulations 176 Exercise 28. Action against sexual harassment 176 Exercise 29. Discriminatory effects of laws and policies: Case studies 184 5.2 Advocacy and reaching out 189 Exercise 30. Making the case for equality 189 Exercise 31. New union strategies to protect the equal rights of workers at the bottom of global supply chains: Case study 194 5.3 Company policies and collective bargaining 198 Exercise 32. Review of company equal opportunity policies 198 Exercise 33. Review of collective agreements on equality promotion 204 Exercise 34. Identifying priorities for equality bargaining 210 Exercise 35. Collective bargaining for gender equality: Role-play 213 Exercise 36. Grievance handling on harassment and discrimination 219
ii Contents
5.4 Consultation of indigenous groups and ethnic minorities 225 Exercise 37. Protection of traditional livelihoods of indigenous peoples: Case studies 225 ______6. Action planning exercises 230 Exercise 38. Action planning to promote equality at work 230 Exercise 39. Developing and implementing an inclusive workplace strategy 232 ______7. Exercise to conclude a training workshop 234 Exercise 40. Workshop evaluation 234 ______Part III. Guide to successful equality training 235 1. What makes an effective adult training? 235 2. What makes a good trainer? 237 3. What and who to train? 238 4. How to promote gender equality in training? 239 5. How to plan a training workshop? 240 6. How to organize a training workshop? 242 7. How to measure the effectiveness of training? 243 ______Part IV. Training aids 244 Training aid 1. Information note – Equality and non-discrimination at work in Cambodia: Manual 244 Training aid 2. Checklist for trainers: Training preparation 246 Training aid 3. Checklist: How to address the gender dimension in training on equality and non-discrimination 247 Training aid 4. Example training programmes on equality and non-discrimination at work 249 Training aid 5. Checklist for organizers: Planning of training 258 Training aid 6. Pre-and post- training questionnaire 259 Training aid 7. Training evaluation form 260 ______Part V. Electronic training tools – On DVD only 1. Slide presentations Presentation 1. The equality principle,standards and rationale Presentation 2. Equality and non-discrimination: Concepts and principles Presentation 3. Methods of application of Convention No. 111 Presentation 4. Gender equality at work: Key issues and strategies Presentation 5. Addressing discrimination based on ethnicity, religion and social origin: Key issues and strategies Presentation 6. Addressing discrimination based on health status or disability: Key issues and strategies Presentation 7. Non-discriminatory human resource management during the employment cycle: Points for conclusion Presentation 8. Strategies for promoting equality and non-discrimination at work: Points for conclusion ______2. For exercises Exercise 12. Quiz and discussion on HIV Exercise 18. Writing non-discriminatory job advertisements Exercise 35. Collective bargaining for gender equality
iii Equality and non-discrimination at work in Cambodia: Manual
Exercise 38. Action planning to promote equality at work ______3. Video presentations Sexual harassment in the workplace, All Women’s Action Society Malaysia (AWAM) Prevention of sexual harassment at work: Preventive measures and countermeasures, Korean Employers Association (KEA) Waging the war on the pay gap, European Commission Directorate General, Brussels Hometown fellows, ILO, Beijing Ability Asia, ILO, Bangkok From rights to reality: Trade unions promoting decent work for persons with disabilities, ILO, Geneva ______Bibliography 262 ______Annexes 273 1. Discrimination (Employment and Occupation) Convention, 1958 (No. 111) 273 2. Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111) 275 3. Glossary of terms 278 ______
Boxes Box 1. Business case for workplace partnership, diversity and equality – Ireland Box 2. Female leadership and company profitability Box 3. Discrimination related provisions in Cambodian legislation Box 4. Problems in understanding the “value” of women’s work in Asia Box 5. Use of affirmative action measures in Asia Box 6. Repealing discriminatory laws in East and South-East Asia Box 7. Arbitration Council orders reinstatement after discriminatory dismissal - Cambodia Box 8. Capacity building of labour inspectors – Czech Republic Box 9. The Equal Opportunities Commission (EOC) – Hong Kong, China Box 10. Codes of practice on non-discrimination and equality promotion at work – Hong Kong, China Box 11. Malaysian Code of Practice on sexual harassment Box 12. Model Equal Opportunities Clause of the UK Trade Union Congress Box 13. Good practice – Tripartite cooperation mechanism – Singapore Box 14. Institutional mechanisms to protect indigenous peoples’ rights – The Philippines
iv Foreword
Foreword
The principles of non-discrimination and equality for men and women are embedded in the Constitution of Cambodia, and in its national labour law. These principles are grounded in the universal principles of decency, dignity and respect. They are universally considered to be fundamental human and labour rights, vital for the promotion of social justice and sustainable economic development. The elimination of all forms of discrimination is one of the ground rules of a fair globalization and the establishment of peaceful, harmonious and inclusive societies.
The right to equal opportunities and equal treatment at work makes good business sense, and empowers all persons, regardless of sex, race, religion, social or ethnic origin or disability, to strive to meet their full potential, to work their way out of poverty and to care for their families. In today’s world, successful economies and enterprises make the most of all human potential available, regardless of the sex, race, origin or religion of the various actors in the world of work. Equality of opportunity and treatment in employment forms an integral part of the ILO’s Decent Work Agenda which promotes opportunities for women and men to obtain decent and productive work in conditions of freedom, equity, security and human dignity.
The Discrimination (Employment and Occupation) Convention, 1958 (No. 111) was adopted by ILO member States in 1958 and remains the most comprehensive international instrument dedicated to the promotion of equality of opportunity and treatment in the world of work. Other key ILO instruments for achieving gender equality at work include the Equal Remuneration Convention, 1951 (No. 100), the Workers with Family Responsibilities Convention, 1981 (No. 156) and the Maternity Protection Convention, 2000 (No. 183). Cambodia ratified Conventions Nos. 100 and 111 in 1999.
This training package provides evidence-based knowledge for capacity building on the application of fundamental labour principles consistent with these ILO conventions. It describes the concepts, strategies and practical measures for eliminating discrimination and promoting equality of opportunity and treatment in workplaces. It provides trainers with practical examples based on international and national experience and step-by-step guidance for conducting training on the various forms of discrimination in employment and in promoting equality at work.
This manual is the result of several years of teamwork of numerous women and men dedicated to promoting a better understanding of the internationally recognized human rights principles of non-discrimination and equality of opportunity and treatment at work. We would like to thank the ILO authors and partners for developing this training package for Cambodia. Eliminating employment discrimination is constant work in progress. It is our hope that the training package will inspire the Cambodian Government, employers’ and workers’ organizations, the judiciary, the Arbitration Council, the academe, civil society organizations and the wider community to realize the principles of non-discrimination and equality in the world of work in Cambodia.
Jiyuan Wang Maurizio Bussi Director Director ILO Country Office for ILO DWT for Cambodia, Lao PDR East and South- and Thailand East Asia and the Pacific
v Equality and non-discrimination at work in Cambodia: Manual
Acknowledgements
Throughout the preparation of the training package, international and national experts have been involved, and situational analyses and law reviews have been undertaken so that equality principles can be better applied in policy formulation and service delivery to workers who face discrimination at work.
Training materials development on equality and non-discrimination at work was initiated by Constance Thomas in China where the ILO partnered with the Ministry of Human Resources and Social Security, the Government of Norway, employers’, workers’ and women’s organizations from 2008 to 2010 to promote the application of equality and non- discrimination principles at work in the country. In 2011, these training materials were developed with the ILO constituents, human rights and women’s organizations in Indonesia and Viet Nam to facilitate the application of international and national principles on non- discrimination and equality in employment and occupation in these and other countries in East and South-East Asia.
This publication is specially developed for use by the ILO constituents and other partner organizations in Cambodia. Localization and development of this training manual required unstinting efforts by many people. We would like to especially thank the Arbitration Council Arbitrators Kong Phallack and Ann Vireak for sharing their expertise. We would also like to express our appreciation for the generous support from ILO collegues Undraa Suren, Nou Pheary, Yim Serey Vathanak, Sek Sophorn, Sreng Hongto, Preap Sophorn Raksa and Jill Tucker in Cambodia and John Ritchotte, Gary Rynhart, Pong-sul Ahn and Paveena Eakthanakit in Bangkok.
The package would have never seen the light of day without the enthusiastic participation of the many people who took an active part in the training and validation workshops in Cambodia between June and October 2012. The workshops were organized within the framework of the Gender Mainstreaming in the ILO Norway Partnership Agreement in Cambodia (GMP) Project, the Social Protection and Gender (SPG) Project, the ACTEMP Strengthening Employers’ Organizations for Effective Social Dialogue and Promotion of Gender Equality Project, and the ACTRAV Trade Unions for Social Justice Project. Financial support for these projects was provided by the Government of Norway and the Spanish Agency for International Development Cooperation (AECID). The stories, queries and keen interest of the training participants demonstrated time and again that workplace discrimination is not an abstract social phenomenon but a harrowing personal experience for many more than a healthy society should endure. We hope the training package will support you and many others worldwide in combating discrimination and promoting equality in workplaces.
Marja Paavilainen, Tim De Meyer and Nelien Haspels October 2012, Bangkok and Singapore
vi Introduction
Introduction
This Equality and non-discrimination at work in Cambodia: Manual was developed and issued by the ILO to support the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) in Cambodia. This Convention was ratified by the Government of Cambodia in 1999. Discrimination is also prohibited in the Cambodian Labour Law and related national legislation.
The Manual is designed for organizations and individuals in charge of providing training on equality, non-discrimination and protection of the rights and interests of groups of workers prone to experience employment discrimination. The materials included in the Manual are suitable for addressing discrimination on the grounds of sex, race, national or social origin, disability and health condition or any other ground prohibited by Cambodian national law or international legislation.
The Manual contains five parts:
I. Equality and non-discrimination: Key concepts contains a short introduction to the key concepts related to equality and non-discrimination at work, and main strategies for government, employers’ and workers’ action to promote equality and prevent and address discrimination in workplaces. II. Exercises contains 40 action-oriented exercises introducing key concepts and strategies to promote equality and non-discrimination in employment and occupation. The total duration of exercises is around 30 hours. Trainers can select suitable exercises and make a training agenda tailored to the specific needs and interests of their training audience. III. Guide to successful equality training provides practical guidance and tips for trainers on planning and implementing participatory training. IV. Training aids includes practical checklists and tools to support trainers and training organizers in designing, organizing and conducting training on equality and non- discrimination at work. The training aids include model training programmes illustrating how the exercises can be combined in training for different audiences, such as trainers, labour officials, employers or workers and their organizations, or zooming in on specific grounds of discrimination like sex and gender, national or social origin or health status. V. Electronic training tools on DVD provides slide presentations for introducing or concluding sessions or exercises, as well as video presentations for use during the sessions or breaks.
In Part III, each Exercise is built up of: • Instructions for trainers with an overview of the full training session (aims, materials and roundup points). • Handouts with case studies. • Handouts with case responses.
1 Equality and non-discrimination at work in Cambodia: Manual
Part I. Equality and non-discrimination: Key concepts
1. The equality principle, standards and rationale
1.1 The origins of discrimination
A university graduate cannot get a job because she may get pregnant one day. Her older sister is repeatedly denied a promotion to a management position because “women cannot cope with the stress”. A young man with a hearing impairment does not get hired because an employer assumes he “might not fit in”. Members of an ethnic minority consistently earn less than members of the predominant ethnic group, although the jobs they typically carry out require skills at least as developed as the jobs typically carried out by “normal citizens”.
All human beings distinguish between different groups of people and a common inclination is to favour the group of which one is a member and to develop prejudices against people who are “different” and belong to other groups. This phenomenon, known as bias or prejudice, naturally makes up for gaps in information or education in the human mind and is often embedded in the way society organizes social life. However, bias may hamper people’s ability to make impartial, objective and fair decisions.
Once bias starts to inform decisions that directly affect people’s livelihood – such as whether to find or hold employment for which one is qualified – it produces negative effects that reverberate far beyond the life of an individual. Bias becomes discrimination at work when it influences public or private decisions affecting people’s employment, occupation or livelihood on grounds that are not a genuine occupational requirement.
The Constitution of the International Labour Organization (ILO) declares that, “all human beings, irrespective of race, creed or sex, 1 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”.2 These principles are articulated as fundamental rights of every human being. What is right for the individual human being is also right for society, as well as smart for the economy and for the nation.
No society is free from discrimination and discriminatory practices pervade all spheres of life, including politics and public life (e.g. participation in the formulation and governance of government policy), education (e.g. access to quality education), health care (e.g. access to affordable hospitals), public services (e.g. public transport) and culture (e.g. access to cultural expressions in the native language).
Workplaces do not escape prejudice that society holds against groups of persons with common characteristics (e.g. women, ethnic groups, persons with a particular complexion or skin colour). At the same time, workplaces that value and reward persons on the basis of merit instead of characteristics irrelevant to job performance offer a powerful rebuke to prejudice and contribute directly to society’s cohesion.
1 In this guide the terms sex and gender are used interchangeably. Gender refers to the social differences and relations between men and women that are learned, vary widely within and between cultures, and change over time, while sex is about biological functions which are universal and are generally difficult to change. In recent years the term gender has started to replace the term sex in day-to-day language. Most laws and other legal texts refer to sex discrimination. However, some laws and many policy documents have also started to use the term gender discrimination. 2 ILO: Declaration of Philadelphia, General Conference of the International Labour Organization, 26th Session, Philadelphia, 1944.
2 I. Equality and non-discrimination: Key concepts
Unrelenting social, economic and political efforts are therefore needed to realize equality of opportunity and treatment for all human beings. Within the international community, the ILO is mandated to promote social justice and secure decent work for all by assisting its member States to combat discrimination and promote equality in the world of work.
1.2 Why is equality important for people, society and business?
The objective of fighting discrimination in the labour market
“The elimination of discrimination through the promotion of equality of treatment and opportunities is not about nullifying all differences in the labour market. The goal of these policies is to make sure that differences in labour market outcomes reflect a free choice in the selection of occupations, an absence of bias in the way merit is defined and valued, and equal opportunities in the acquisition and maintenance of market- relevant skills”.
ILO: Time for equality at work (Geneva, 2003), p. 26, para. 83.
Equality of opportunity and treatment should be pursued at various levels: the level of the person, the society and the macro-economic environment, as well as the level of the company and institutions. Promoting equality at all these levels in important to prevent and eliminate negative effects of discrimination.
At individual level, discrimination: • Violates human dignity of individual workers. • Denies a person essential means to pursue material well-being and spiritual development. • Causes frustration, anger, or even violence. • Reduces individual workers’ job satisfaction and work morale.
At workplace level, discrimination: • Decreases workforce well-being, satisfaction, commitment and work-family balance. • Increases employee turnover. • Decreases productivity and competiveness. • Hampers innovation and creativity. • Increases risks of workplace conflict, labour disputes and litigation. • Hampers company reputation.
At the level of society, discrimination: • Leads to social exclusion. • Causes increased risk of social instability and wealth destruction. • Hampers economic growth as people’s talents remain under-utilized. • Undermines a nation’s efforts to improve its human resources. • Hampers equal distribution of the fruits of development.
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Box 1. Business case for workplace partnership, diversity and equality – Ireland
A survey of 130 leading companies in Ireland has confirmed a strong link between bottom-line business performance and the use of strategic human resource management, workplace partnership, and implementation of workplace diversity and equality strategies. The main findings of the study were as follows:
Labour productivity: The use of the above three strategies accounted, on average, for 14.8 per cent increase in labour productivity among the survey sample: • strategic human resource management accounted for 10 per cent of the increase, • workplace partnership was associated with 3.9 per cent of the increase, and • diversity and equality strategies accounted for 6.5 per cent of the increase. In terms of total economic value, annual productivity-per-employee was found to be €299,992, of which €44,399 was directly attributable to the use of strategic human resource management, workplace partnership and diversity and equality strategies. For the median-sized company in the survey (270 employees), this equates to an additional €12 million in annual sales revenue.
Workforce innovation: The use of the above three strategies accounted for 12.2 per cent increase in workforce innovation: • strategic human resource management was associated with greater workforce innovation (5 per cent of variance), and • equality and diversity strategies accounted for 7.9 per cent of the increase. The increase in innovation was equivalent to sales revenue of €2,061 per employee per annum, or €556,200 in the median-sized company.
Employee turnover: The use of the above three strategies accounted for 7.7 per cent decrease in annual employee turnover: • strategic human resource management and workplace partnership accounted for 4 per cent decrease in employee turnover, and • diversity and equality measures accounted for 4.4 per cent in employee turnover.
Source: National Centre for Partnership and Performance (NCPP) and The equality Authority: New models of high performance work systems. The business case for strategic HRM, partnership and diversity and equality systems (Dublin, 2008).
Box 2. Female leadership and company profitability
Various studies show that there is a positive and significant correlation between company performance, profitability and gender diversity in company senior management. The studies show that both small and medium enterprises and larger companies can gain a competitive advantage over their peers by identifying and eliminating obstacles to women’s advancement to top management.
A study conducted by the Finnish Business and Policy Forum (EVA) analyzed statistical data from 12,738 limited companies in Finland. The data sample of this study is one of the most representative and extensive company-level data used in gender research, covering 91 per cent of Finnish limited companies with more than 10 employees. The study found out that when all other factors affecting firm profitability (such as size, sector etc.) were controlled, a company with a female CEO was about 10 per cent (slightly more than one percentage point) more profitable than an otherwise similar company with a male CEO. Similarly, a company with a gender balanced board was on average about 10 per cent more profitable than a similar
4 I. Equality and non-discrimination: Key concepts
company with an all male board. The study concludes that to boost their profitability, companies should promote gender-neutral career opportunities and take steps to remove the numerous and often difficult-to-observe mechanisms and networks that favour men and hinder women from climbing the executive ladder.
Similar conclusions were drawn in a study conducted by McKinsey & Company, an international management consulting firm. The study analyzed the performance of 89 European listed companies with the highest level of gender diversity in top management. The selection criteria included the number, proportion and function of women on the executive committee and presence of more than two women on the board. The study found that companies with a high level of gender diversity in top management outperformed their sector in terms of returns on equity (11.4 per cent vs. sector average of 10.3 per cent), operating results (EBIT 11.1 per cent vs. 5.8 per cent), and stock price growth (64 per cent vs. 47 per cent over the period 2005- 2007). Another study conducted by McKinsey & Company established a striking correlation between organizational excellence and women’s participation in management bodies. The nine criteria analyzed were: leadership, direction, accountability, coordination and control, innovation, external orientation, capability, motivation, work environment and values. The study was based on analysis of answers from 58,240 respondents from 101 large corporations in Europe, America and Asia.
Sources: Finnish Business and Policy Forum (EVA): Female leadership and firm profitability, EVA Analysis No. 3 (Helsinki, 2007); McKinsey & Company: Women matter: Gender diversity, a corporate performance driver (Paris, 2007).
1.3 Key international policy instruments to promote equality
Equality is a human right that all people shall enjoy in the world of work as well as in all other walks of life. The principle was first recognized in the ILO Constitutional documents in 1919 and 1944, and then in the Universal Declaration of Human Rights in 1948. Thereafter, the principle of non-discrimination has been established in various international labour standards and international human rights treaties. The main internationally recognized fundamental instruments establishing the principle of equal opportunity and treatment at work are the ILO Equal Remuneration Convention, 1951 (No. 100) and the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
The Equal Remuneration Convention, 1951 (No. 100)3 and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)4 set the fundamental standards on the elimination of discrimination at work. Only a handful of ILO member States have not yet ratified either or both Conventions. The ILO 1998 Declaration on Fundamental Principles and Rights at Work as well as the 2008 Declaration on Social Justice for a Fair Globalization reaffirm the importance of non-discrimination as a fundamental principle and right at work. Both Conventions are included among the core principles of the United Nations Global Compact which was launched in 2000 as a strategic policy initiative for businesses that are committed to aligning their operations with ten universally accepted principles in the area of Human rights, labour environment and anti-corruption.
3 Supplemented by the Equal Remuneration Recommendation, 1951 (No. 90). 4 Supplemented by the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111).
5 Equality and non-discrimination at work in Cambodia: Manual
Non-discrimination is a fundamental workers’ right
The Equal Remuneration Convention (No. 100), adopted by the International Labour Conference in 1951, promotes equal pay for work of equal value between men and women. It was the first ever international labour instrument adopted to eliminate discrimination in employment, addressing pay discrimination on the ground of sex.
The Discrimination (Employment and Occupation) Convention (No. 111), adopted by the 42nd Session of International Labour Conference on 4 June 1958, sets comprehensive standards to promote equality of opportunity and treatment in the world of work: • The purpose of Convention No. 111 is to protect all persons against discrimination on the basis of race, colour, sex, religion, political opinion, national extraction or social origin in employment and occupation. • The Convention protects not only those who are employed or engage in an occupation, but also those who are preparing to work, seeking work, or risk losing their work. • The Convention applies to all sectors of activity and covers all occupations and employment in both public and private sectors, as well as in the informal economy. It covers not only wage-employment, but also independent and own- account work.
The Convention calls upon States to adopt and implement a national policy to promote equality of opportunity and treatment with a view to eliminating discrimination in all aspects of employment and occupation for all workers. The Convention, therefore, is not only concerned with the elimination of discrimination – or the absence of inequality – but goes a step further and requires a proactive, positive approach towards the promotion of equality in opportunity and treatment in employment and occupation: • Equal employment opportunity means that a person must have chances to secure access to training, placement or employment that are not less favourable than the chances of persons in the same or comparable situations. • Equal treatment in employment means that an employer must treat an employee not less favourably than other employees who are in the same or comparable situations.
Protection against discrimination is a fundamental human right. Provisions and instruments calling on States to combat discrimination are a mainstay of international law and are contained in a number of United Nations (UN) instruments.
Non-discrimination is a human right5
The general principle of equality and discrimination was adopted in the Universal Declaration of Human Rights (UDHR), 1948. The UDHR declares that human rights should be enjoyed without distinction of any kind. The UDHR sets out a non- exhaustive list of prohibited grounds for discrimination:
5 Office of the High Commissioner for Human Rights: OHCHR Factsheet 30, http://www.ohchr.org (accessed 15 Sep. 2010).
6 I. Equality and non-discrimination: Key concepts
• Race or colour. • Sex. • Language. • Religion. • Political or other opinion. • National or social origin. • Property, birth or other status.
The nine core human rights treaties reflect the general principle of equality and non- discrimination in enjoyment of human rights, as adopted in the UDHR. The above list of prohibited grounds of discrimination is also included in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Subsequent treaties have expanded the list further. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) are specifically aimed at eliminating racial discrimination and discrimination against women respectively.
1.4 Cambodian legal framework on non-discrimination at work
The principles of equality and non-discrimination are enshrined in the Cambodian Constitution and national law. Article 31.2 of the Constitution (1993, amended 1999) guarantees that “[e]very Khmer citizens shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth, origin, social status, wealth or other status”. Article 12 of the Labour Law (1997) prohibits discrimination in hiring, defining and assigning of work, vocational training, advancement, promotion, remuneration, granting of social benefits, discipline and termination of employment contract on nine grounds. The grounds covered include race, color, sex, creed, religion, political opinion, birth, social origin and membership of workers’ union or the exercise of union activities. Discrimination on the grounds of disability and HIV status are prohibited in the Law on the Protection and the Promotion of the Rights of Persons with Disabilities (2009) and the Law on the Prevention and Control of HIV/AIDS (2002) respectively. These laws establish also penalties for violation of the non- discrimination provisions.
Individuals or groups who feel that they have been discriminated against in hiring or during employment can take their case to conciliation, and if conciliation fails, either to courts or arbitration. Since its establishment in 2003, the Arbitration Council has assessed several discrimination cases primarily on the ground of the exercise of union activities. Sanctions imposed by the Arbitration Council have included orders to pay compensation or to reinstate workers after wrongful dismissals.
Box 3. Discrimination related provisions in Cambodian legislation
General non- “Every Khmer citizens shall be equal before the law, enjoying the same discrimination rights, freedom and fulfilling the same obligations regardless of race, color, prohibitions sex, language, religious belief, political tendency, birth origin, social status, wealth or other status”. (Constitution, Article 31.2).
7 Equality and non-discrimination at work in Cambodia: Manual
“Except for the provisions fully expressing under this law, or in any other legislative text or regulation protecting women and children, as well as provisions relating to the entry and stay of foreigners, no employer shall consider on account of: race, color, sex, creed, religion, political opinion, birth, social origin, membership of workers' union or the exercise of union activities; to be the invocation in order to make a decision on: hiring, defining and assigning of work, vocational training, advancement, promotion, remuneration, granting of social benefits, discipline or termination of employment contract. Distinctions, rejections, or acceptances based on qualifications required for a specific job shall not be considered as discrimination”. (Labour Law, Section 2 Non-discrimination, Article 12).
Penalties for violating Article 12 of the Labour Law range from a fine of sixty-one to ninety days of base daily wage to imprisonment of six days to one month. (Labour Law, Article 369).
Gender “Khmer citizens of either sex shall enjoy the right to choose any equality employment according their ability and to the needs of the society. Khmer citizens of either sex shall receive equal pay for equal work”. (Constitution, Article 36).
“All forms of discrimination against women shall be abolished. The exploitation of women in employment shall be prohibited. Men and women are equal in all fields especially with respect to marriage and family matters. […]”(Constitution, Article 45).
“A woman shall not lose her job because of pregnancy. Woman shall have the right to take maternity leave with full pay and with no loss of seniority or other social benefits”. (Constitution, Article 46.2).
Articles 182-185 of the Labour Law provide for maternity leave, benefits, health protection and breastfeeding breaks for women during pregnancy and after childbirth. Article 186 provides for establishment of nursing rooms and daycare centers in the workplace.
Sexual “[…] All form of sexual violation (harassment) is strictly forbidden”. harassment (Labour Law, Article 172).
“Every act of touching, caressing, fondling of sexual organ or other sexual parts of the others, who do not accept this act voluntarily, or forcing the other person to commit such act on self or third person for the purpose of sexual arousal or pleasure of the perpetrator is considered as sexual harassment.. Sexual harassment act is punishable by 1 (one) to 3 (three) year imprisonment term and a fine of Riels 2,000,000 (Two Million) to 6,000,000 (Six Million)”. (Penal Code, Article 246: Sexual Harassment).
Persons with “Persons with disabilities who have the required qualifications and disabilities competence to carry out the duties, role and responsibilities of a particular position have the right to be employed without discrimination, including employment as civil servants, workers, employees, apprentices or interns”. (Law on the Protection and the Promotion of the Rights of Persons with Disabilities, Article 33).
8 I. Equality and non-discrimination: Key concepts
The law also establishes a quota for employment of persons with disabilities (Articles 34-35) and requires employers to provide reasonable accommodation to workers with disabilities (Article 38). Those employers who are not able to fulfill the quota obligation need to pay a charge to the Persons with Disabilities Fund (Article 37). A fine may be imposed on legal entities or state institutions failing to comply with the above obligations. (Article 54).
Persons living “Discrimination in any form at pre and post employment, including hiring, with HIV and promotion and assignment, living in society based on the actual, perceived AIDS or suspected HIV/AIDS status of an individual or his/her family members is strictly prohibited. Any termination from working based on the actual, perceived or suspected HIV/AIDS status of individual or his/her family members is deemed unlawful” (Law on the Prevention and Control of HIV/AIDS, Article 36).
Discrimination against persons living with HIV and AIDS is also prohibited in education and in access to credit and loan services (Articles 37, 40). In addition, the law prohibits compulsory HIV testing (Article 20) and protects confidentiality of health information of persons living with HIV and AIDS (Article 33). Penalties for violating the above provisions range from a fine to imprisonment of one to six months. (Articles 51-2).
Trade union “Khmer citizens of either sex shall have the right to form and to be membership member of trade unions”. (Constitution, Article 36.5).
“Employers are forbidden to take into consideration union affiliation or participation in union activities when making decisions concerning recruitment, management and assignment of work, promotion, remuneration and granting of benefits, disciplinary measures and dismissal”. (Labour Law, Article 279).
Casual workers “Casual workers are subject to the same rules and obligations and enjoy the same rights as regular workers, except for the clauses stipulated separately”. (Labour Law, Article 10).
Criminal “The act of refusing to provide assets or services to an individual is liability for punishable by 1 (one) month to 1 (one) year imprisonment term and a fine discrimination of Riels 100,000 (One Hundred Thousand) to 2,000,000 (Two Million) if such refusal is made on the following ground: 1. The fact that the person is or is not a member of a specific ethnicity, national group or race; 2. The fact that the person is or is not a member of a specific religion; 3. Political affiliation of the person; 4. The person’s involvement in union activities; 5. Marital status of the person; 6. Sex of the person; 7. Health status of the person; 8. Disability of the person”. (Penal Code, Article 265: Refusal to Provide Assets or Services).
“Refusal to employ a person is punishable by 1 (one) month to 1 (one)
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year imprisonment term and a fine of Riels 100,000 (One Hundred Thousand) to 2,000,000 (Two Million) if such refusal is made on one of the grounds as mentioned from Point 1 to Point 8 (Refusal to Provide Assets or Services) of Article 265 of this code”. (Penal Code, Article 267: Refusal to Employ a Person).
“Dismissal or removal of a person on one of the grounds as mentioned from Point 1 to Point 8 (Refusal to Provide Assets or Services) of Article 265 of this code is punishable by 1 (one) month to 1 (one) year imprisonment term and a fine of Riels 100,000 (One Hundred Thousand) to 2,000,000 (Two Million)”. (Penal Code, Article 269: Dismissal or Removal on the Ground of Discrimination).
Article 505 of the Penal Code criminalizes also provocation to commit discrimination on the grounds of ethnicity, nationality, race or religion. Article 503 specifies that provocation is punishable when it is committed by speech, by writing or sketches or by any means of audio-visual communications for the public.
10 I. Equality and non-discrimination: Key concepts
2. Discrimination and equality: Concepts and principles
2.1 Definition of discrimination in Convention No. 111 and Cambodian Labour Law
The aim of Convention No. 111 is to promote equality of opportunity and treatment in respect of employment and occupation without discrimination on grounds that are not a genuine occupational requirement. Each ratifying State must adhere to the basic goal of promoting equality of opportunity and treatment by means of a national policy which aims to end all forms of discrimination in employment and occupation. The elimination of discrimination at work is indispensable to any strategy to achieve decent work, reduce poverty and ensure sustainable development.
Discrimination at work means a different, usually less favourable work-related treatment or opportunity for which there is no objective or legitimate justification. For example, discrimination occurs when two people of the same merit but of a different race, colour or sex are paid different salaries or treated differently for the same job or a job of equal value. If, however, the pay differences reflect differences in productivity or prior qualifications of the workers, the employer may have a legitimate reason to pay one person more than another.
Discrimination originates from bias, perceptions and subjective views and opinions, preconceptions or prejudices about the abilities or attitudes ascribed to individuals belonging to particular groups, rather than objective facts. Examples include generalizations about abilities of men, women, persons with disabilities or of different age or background, presumptions about “men’s jobs” and “women’s jobs” and stereotyped ideas about the kinds of jobs suitable and not suitable for rural migrants or ethnic minorities. All people have biases as it is natural for people to feel sympathy and accept things that are “familiar” and like people who are “similar” to oneself. No one wants to believe and admit that they harbour biases but research-based evidence shows that most, if not all, people have prejudices to some extent. Hidden bias that goes unrecognized easily leads to discrimination.
Discrimination Discrimination in employment and occupation is defined in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which sets comprehensive standards to promote equality of opportunity and treatment in the world of work.
Definition of discrimination in Convention No. 111
“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”. (Article 1 (1)(a))
The above definition of discrimination in Convention No. 111 has three components: 1. An act of making a distinction, excluding somebody or giving somebody a preference. 2. A prohibited ground which gave rise to this act (sex, ethnicity, etc.). 3. An outcome that has a negative impact on certain group of workers.
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If all three components are present, the person or group of people who has been negatively impacted has been discriminated against. (See the Figure below.)
Figure. The three components of the discrimination definition in Convention No. 111
2. Cause 1. Act 3. Effect
PROHIBITED DISCTINCTION GROUNDS IN TREATMENT • Sex • Race, Colour • Religious belief EXCLUSION • Social origin FROM UNEQUAL • National OPPORTUNITY EMPLOYEMENT extraction OUTCOME • Political opinion PREFERENCE GIVEN + Other nationally defined grounds
DISCRIMINATION
In Cambodian national legislation the general prohibition of discrimination at work is included in Article 12 of the Labour Law. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted that Article 12 of the Labour Law is in accordance with Convention No. 111 and should operate to strengthen its application.6
Prohibition of discrimination in Cambodian Labour Law
“[…] no employer shall consider on account of: race, color, sex, creed, religion, political opinion, birth, social origin, membership of workers' union or the exercise of union activities; to be the invocation in order to make a decision on: hiring, defining and assigning of work, vocational training, advancement, promotion, remuneration, granting of social benefits, discipline or termination of employment contract”. (Labour Law, Section 2 Non-discrimination, Article 12).
Equality of opportunity and treatment Discrimination and equality are two sides of the same coin. Discrimination means absence of equality. Equality at work represents a fundamental value and principle enabling workers to claim a fair share of the wealth which they help generate: • The principle of equal opportunity at work aims to ensure that people have equal chances to develop their potential to the fullest and can allocate their time and energy where reward is the highest.
6 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2005).
12 I. Equality and non-discrimination: Key concepts
• The principle of equal treatment at work aims to ensure that people’s work performance is rewarded according to their productivity and merit. It refers to employment and working conditions, such as equal entitlements in pay and job security.
Employment and occupation Convention No. 111 aims at the elimination of discrimination with respect to all aspects of employment and occupation: • Employment refers to work performed under an employment relationship with an employer. • Occupation means the trade, profession or type of work performed by an individual, irrespective of the branch of economic activity or the employment status of the worker.
Discrimination in the labour market and the workplace can be found in different work situations and in formal and informal employment in all economic sectors. The Convention provides protection against discrimination not only to employees, but covers the full spectrum of the working population. Traditional occupations pursued by indigenous peoples, such as subsistence farming, handicraft production or hunting, are occupations covered by the Convention. The terms “employment and occupation” apply also to work carried out by public servants (including members of the armed forced and police), by agricultural workers, unpaid family workers, owners of enterprises, own-account workers and the self-employed in sectors not covered by labour protection, such as subcontracted homeworkers, domestic workers, street vendors, taxi and (motor-) cycle drivers.
The Convention’s definition of discrimination adopted in 1958 was forward-looking and ahead of its time as it recognizes direct, indirect and structural discrimination, covers (sexual) harassment and requires ratifying member States to report not only on measures taken to promote equality but also indicate “the results secured by such action” (Art 3(f)). It remains the most comprehensive, dedicated international instrument to guide national legislation on the promotion of non-discrimination and equality.
2.2 What is discrimination at work? – Key concepts
In order to better understand and address discrimination, it is useful to categorize how it manifests. It can exist in law or in practice, happen directly or indirectly, and it may consist of harassment. It is often structural, in other words entrenched in society and its institutions. The Convention covers all these forms.
2.2.1 Discrimination in law and in practice
Discrimination can exist in laws or regulations - also known as “de jure” – and/or exist in reality and in practice – known as “de facto”. A labour code stipulating that people from one ethnicity shall receive less pay than persons from another ethnicity because of their ethnic origin is “de jure” discrimination, whereas the actual practice of paying persons belonging to one ethnic group more than those belonging to another ethnic group is “de facto” discrimination.
It is relatively easy to remedy “de jure” discrimination and considerable progress has been made over the past 50 years in this respect. In most countries laws have been changed and rules preferring or excluding one group over another have been repealed. However, de jure discriminatory provisions still exist in a number of countries. For example, in some countries, laws still place limitations on the type of work women can do, or exclude them from certain
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sectors or occupations such as the judiciary or the police. In many countries men are often also entitled to more fringe benefits than women engaged in the same work or in jobs of equal value. Discrimination in practice is still widespread and is more challenging to combat. For example, in many countries it is now forbidden to specify one sex or ethnicity in job advertisements. However, in most countries people of a certain sex or ethnicity are preferred for certain jobs and this leads to bias against groups of the other sex or ethnic origin in actual recruitment practices.
2.2.2 Direct discrimination
Another useful distinction to make is the difference between direct and indirect discrimination. Direct discrimination occurs when a prohibited ground is explicitly used for job-related differential treatment in laws, rules or practices. For example, a labour law stipulating that rural migrants in cities shall receive less pay than residents of these cities for the same job is directly discriminatory. Or, creating a different job-related opportunity for men or women only, or for persons confessing to a certain religion only, constitutes direct discrimination.
Direct discrimination continues to be common in actual employment practices. Explicit or direct “taste-based” discrimination often occurs when employers select one sex only in fields where they consider that this sex has a competitive advantage, for example, women in service jobs due to customer preferences for women, or men as managers because they are perceived as more capable decision makers.
2.2.3 Indirect discrimination
Indirect discrimination refers to rules and practices which appear neutral but in practice lead to disadvantages primarily suffered by people of one sex, race, colour or other characteristics, and cannot be justified by the inherent requirements of the job. Indirect discrimination may involve certain requirements (e.g. physical height or dress code), conditions (e.g. working hours) or practices (e.g. blaming for common incidents) that have a disproportionately negative impact on members of a certain group, such as women, ethnic or religious groups.
Indirect discrimination is often hidden and invisible at first glance. It may be unintentional and stem from unconscious and culturally accepted practices. In many instances indirect discriminatory practices may be considered “business as usual” or “normal” operating procedures that are in line with long-accepted traditions. To understand indirect discrimination one must often challenge established assumptions and convincingly document their negative impact and outcomes in the labour market. One must not ask what the motives are of the involved persons but what the results are of their action.
Statistics play a vital role in establishing or disproving indirect discrimination, because hard data can provide the evidence that an employment practice has an adverse impact on one group and not on another.7 For this reason, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) consistently requests governments to collect and analyze relevant data, disaggregated by sex and where possible social origin and/or religion, on the distribution of the different groups of the population in the various sectors of employment, occupations and levels of earnings.8
7 Thomas, C. and Taylor, R.: Enforcement of equality provisions for women workers (Geneva, ILO, 1994). 8 On the relevance of statistical data for assessing progress on the gender pay gap, see, for example, ILO: “General observation on Convention No. 100,” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 88th Session (Geneva, 1999), p. 354.
14 I. Equality and non-discrimination: Key concepts
Examples of direct and indirect discrimination
• An employer of cleaning workers who has a different wage scale for men and for women cleaners engages in direct sex discrimination. • An employer of cleaning workers who uses different job titles and pays a higher wage to “surface technicians” (who are all men) than to “cleaning maids” (who are all women), although the work is very similar and the value of their output is exactly the same, engages in indirect sex discrimination.
• Bank loan conditions that require applicants to be a member of the dominant religion in order to qualify for a loan are a form of direct discrimination. • Bank practice of providing information on access to credit in the majority language only while it is known that most ethnic minority peoples cannot read the majority language can amount to indirect discrimination.
• Job advertisements that state that persons with disabilities or health conditions need not apply are directly discriminatory. • Job advertisements that specify an irrelevant height requirement that a person using a wheelchair cannot meet can be indirect discrimination if the height requirement is not related to the inherent requirements of the job in question.
• The exclusion of domestic workers, workers in agriculture, part-time and seasonal workers from social protection measures may result in indirect discrimination against various groups. Low-income women, workers belonging to ethnic minorities, migrants and elderly workers are disproportionately represented in these types of work and therefore suffer the most from this type of exclusion.
2.2.4 Structural discrimination
Differential treatment is most readily thought of as emerging from the behaviour of an individual employer in a given situation at a given point in time. However, often discrimination is not an exceptional or aberrant occurrence, resulting from isolated acts of an individual employer or worker, but a systematic phenomenon, deeply embedded in the way organizations function, laws and rules are applied and workplaces operate. Its effects are far more significant, obviously, if it emerges from laws, administrative regulations, policies, practices, the functioning of institutions or social patterns – this is known as structural (systemic, systematic or institutional) discrimination and must be addressed over time as a matter of public policy.9
2.2.5 Harassment
Differential treatment at the workplace can also consist of creating a violent, threatening and unpleasant working environment. Harrasment may involve, for example, giving a person unwanted (sexual) attention, using a person as the target of one’s social prejudices, or bullying a person for his or her racial features. Such behaviour can also occur during
9 ILO: Equality at work: Tackling the challenges (Geneva, 2007); ILO: Time for equality at work (Geneva, 2003).
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employment or at the recruitment stage, for example, when recruitment decisions are based on candidates’ acceptance or rejection of a request for (sexual) favours. The common term used for this type of behaviour is “harassment”.
Harassment is a form of discrimination if it is based on one of the prohibited grounds of discrimination defined in the Convention or in national legislation. Actions constituting harassment may be: • Physical – e.g. (sexual) violence or unwelcome physical contact such as kissing or touching. • Verbal – e.g. comments, offensive jokes, personal insults, derogatory language. • Non-verbal – e.g. staring, leering, whistling, threatening behaviour, sexually suggestive gestures, or ‘freezing’ somebody out.
The most severe forms of (sexual) violence are physical assault and rape which are criminal behaviour covered by criminal law. The other principal two forms of harassment include: • “Quid-pro-quo” (meaning “this for that”) harassment. It refers to a demand by a person in authority, such as a supervisor, for favours in order to obtain or maintain a job benefit – be it recruitment, a wage increase, a promotion or training opportunity, a transfer or job security. This type of harassment takes place most often as (sexual) blackmail, that is demanding (sexual) favours in exchange for a job benefit. • The creation of a hostile working environment. This refers to verbal, non-verbal or physical conduct that creates an intimidating, offensive, humiliating, abusive or poisoned working environment, and interferes with people’s performance at work.
The essential characteristic of harassment is that it is unwanted and unwelcome by the recipient. In a work-related context, harassment can emanate from an employer, a supervisor, a colleague, a visitor, a customer, or anybody with whom the worker is expected to interact. It often takes place at the physical workplace, but may extend well beyond that to all work- related interactions where a perpetrator has “access” to the person being harassed. Examples include travel to and from work, office parties, phone calls and mails. Preventive measures should anticipate harassment in a wide variety of work-related interactions.
Research conducted in Cambodia indicates that harassing behaviour and use of harsh language by line supervisors sometimes occurs in some Cambodian garment factories.10 If the language used by supervisors includes references to workers’ sex, ethnicity, place of origin, physical features or any other personal characteristics such language can be considered discriminatory harassment. As regards sexual harassment, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted the poor safety of women workers in the beer sales industry and has asked the Government of Cambodia to include the issue of sexual harassment more explicitly in the terms of reference for labour inspectors.11
A working environment “polluted” by harassment inevitably involves loss of productivity. It can also be the source of work-related health problems such as stress, depression and, in severe cases, fatal accidents such as suicide. Due to these health impacts harassment is considered an occupational health issue, and covered under the Occupational Safety and Health Convention, 1981 (No. 155).
10 A. Derks: Khmer women on the move: Exploring work and life in urban Cambodia (Honolulu, University of Hawaii Press, 2008), p. 86-87; ILO: Action-oriented research on gender equality and the working and living conditions of garment factory workers in Cambodia, Social Protection and Gender (SPG) project (Phnom Penh, 2012). 11 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2012).
16 I. Equality and non-discrimination: Key concepts
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has emphasized that sexual harassment is a form of sex discrimination and should be addressed within the requirements of Convention No. 111. In the past there was little awareness on sexual harassment in workplaces and society with gender stereotypes abounding, such as “women ask for it,” or “like it deep in their heart” or “it is just some workplace fun”.12 However, it is now widely acknowledged that sexual harassment undermines equality at work by calling into question the integrity, dignity and well-being of workers. The productivity of enterprises is also impaired as sexual harassment weakens the basis upon which work relationships are built.13
2.3 Prohibited grounds of discrimination by Convention No. 111
The Convention No. 111 requires ratifying States to ensure protection against discrimination on seven grounds, namely race, colour, sex, religion, political opinion, national extraction and social origin, as well as other grounds prohibited in national legislation. The Cambodian Constitution and national legislation have prohibited discrimination on four additional grounds: disability, HIV status, language and membership in a trade union or the exercise of union activities.
Prohibited grounds of discrimination in Cambodia ILO Convention No. 111 Cambodian legislation
• Sex ü ü • Race or ethnicity ü ü • Colour ü ü • Religious belief or creed ü ü • Social origin, birth, social status, ü ü wealth or other status • Language ü • National origin ü • Political opinion ü ü • Disability ü • HIV status ü • Membership in a trade union or the ü exercise of union activities
ILO experience learns that discrimination in many cases is not limited to discrimination on solely one ground.14 For example, a young woman from a hill tribe who has migrated from an
12 N. Haspels; Z.M. Kasim; C. Thomas; D. McCann: Action against sexual harassment at work in Asia and the Pacific (Bangkok and Geneva, ILO, 2001). 13 ILO: “General observation on Convention No. 111”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 91st Session, Geneva, 2003. 14 See for example, ILO: “Fiftieth anniversary of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 98th Session (Geneva, 2009).
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isolated rural area to a capital city may have limited job options and has to cope with multiple forms of discrimination on the grounds of race, colour, sex, national extraction, social origin and possibly age. This leads to a vicious circle of cumulative disadvantage.
2.3.1 Sex and gender
Discrimination in employment and occupation based on sex occurs when men and women have unequal opportunities or are treated differently in employment or occupation due to perceptions and prejudices on their biological and/or social gender roles in society. In many Asian countries, for example, women are assigned the main responsibility for looking after the family and household duties and this is considered to limit their job performance. Such ideas, expectations and norms about the roles, characteristics, abilities and behaviour of men and women exist in every society and they form the root causes of discrimination on the ground of sex.
Objective biological differences between women and men, most notably differences in reproductive functions, may justify and sometimes even require differences in treatment between women or men. However, employment discrimination against women, and sometimes men, often does not derive from objective facts but is based on assumptions and generalizations on what each sex can and cannot, and should and should not do.
In most countries the law prohibits direct discrimination based on sex. In practice, however, women continue to encounter both the direct and the more hidden forms of discrimination during their working lives in most countries. Distinctions in the labour market based on pregnancy and maternity discriminate against women because only women become pregnant and give birth. Women of reproductive age often just do not get a job because they may become pregnant. Or, when they are recruited their verbal or written labour contract stipulates that they should not get married or pregnant for several years or even an unspecified period of time. If they do, they breach their contract and face immediate dismissal. This kind of practice has been found to be relatively common, for example, in China and Viet Nam, even if it has been prohibited by labour legislation.15 Similar workplace practices are reported from Indonesia, the Republic of Korea and Thailand. It is also reported that women, in fear of losing their job will forego benefits, even if they are entitled to them. The Maternity Protection Convention, 2000 (No.183) prohibits termination of women’s employment during pregnancy, maternity leave or the period following their return to work, except on grounds unrelated to pregnancy, childbirth or nursing.
In addition, many women face employment discrimination because societies assign family and household responsibilities almost exclusively to them. As a result, many employers are reluctant to hire them due to perceptions that mothers are less competent at work than fathers. Delivering and raising children, benefit society at large so that the responsibilities and burdens involved should be shared in society, and not be borne exclusively by women. Distinctions on the basis of civil or marital status are also discrimination on the ground of sex when they result in a requirement or condition being imposed on an individual of a particular sex that would not be imposed on an individual of the other sex.
One factor contributing to sex discrimination in employment and occupation and women’s disadvantaged position in employment in Asia is the persistence of strong gender-role stereotyping which legitimizes discrimination against women in society and the labour market. The ILO Committee of Experts on the Application of Conventions and
15 Ministry of Labour, Invalids and Social Affairs (MOLISA), ResearchCenter for Female Labour (RCFL) and F. Howell: Equality, labour and social protection for women and men in the formal and informal economy in Viet Nam (Hanoi, ILO, 2003).
18 I. Equality and non-discrimination: Key concepts
Recommendations (CEACR) and the UN Committee on Elimination of Discrimination Against Women (CEDAW) have repeatedly reminded the governments of Asian countries about the importance of repealing these stereotypes to ensure women and men equal opportunities in employment and occupation.16
One way in which these strong gender-role stereotypes manifest is occupational sex segregation, which continues to limit free choice of employment and occupation for both women and men in the East and South-East Asian labour markets. Women continue to a different range of occupations (horizontal segregation) and often lower job grades than men (vertical segregation). The CEACR and the CEDAW have urged the governments in Cambodia, China, Indonesia, Singapore and Viet Nam, among others, to hasten their efforts to ensure women‘s access to employment in a wider range of occupations and industries. One key strategy towards this goal is ensuring girls’ and women’s access to a more diversified choice of education and training.17
Occupational sex segregation is linked to wage discrimination suffered by women, which is the outcome of undervaluing the jobs traditionally dominated by them. The gender pay gap, that is, the pay difference between women and men, is considerable in all Asian labour markets with the Republic of Korea topping the chart with a 40 per cent pay gap in 2010.18 The gender pay gap is a clear form of structural discrimination against women, and must be addressed progressively over time as a matter of public policy.
Discrimination against women remains pervasive throughout the labour markets in Asia as they continue to be concentrated in the most vulnerable categories of atypical and informal employment. For example, in Japan and the Republicof Korea women continue to be overrepresented in part-time and non-regular employment, earning much lower wages than full-time and regular workers, most of whom are men.19 In Indonesia, women continue to predominate in informal employment and among the unemployed.20
2.3.2 Race and colour
Under Convention No. 111, the term “race” is considered in a wide sense to refer to ethnic groups or linguistic communities or minorities whose identity is based on cultural or religious characteristics or national extraction. (See Section 2.3.4 below). Protection against racial discrimination covers ethnic minorities, in particular indigenous and tribal peoples, and any other minorities disadvantaged on racial grounds, including immigrant ethnic groups. Examples of prohibited discrimination based on race and colour include, among others, giving preference to persons from one’s own country or applicants froma certain ethnic group in recruitment.
16 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Japan”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2007), CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006), Indonesia (2007), Lao PDR (2005), Malaysia (2006), Philippines (2006), Singapore (2007), Thailand (2006) and Viet Nam (2007) (Geneva). 17 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Viet Nam” in Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2010); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006), Indonesia (2007) and Singapore (2007). 18 OECD: Gender brief (2010). 19 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Japan” in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2008, 2007, 2005); ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Republic of Korea (Geneva, 2006, 2004). 20 Indonesia, BPS: Labour Force Survey (Jakarta, 2010).
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The grounds of race and colour are generally examined together, since colour is one of the most visible ethnic characteristics that differentiate human beings. Discrimination in employment and occupation based on race or colour occurs when a person’s job opportunities or treatment are determined by his or her racial features, including the colour of the skin (complexion). Racial discrimination can occur against persons who share the same citizenship, but are of a different ethnic origin.
Another ILO instrument promoting equality of ethnic minorities in employment and occupation is the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Convention prohibits discrimination and provides for consultation and participation of indigenous and tribal peoples with regard to policies and programmes that may affect them. It provides for enjoyment of fundamental rights, and establishes general policies regarding indigenous and tribal peoples’ customs and traditions, employment and livelihood, vocational training, handicrafts and rural industries, social security and health, education, land rights, the use of natural resources found on traditional lands, and cross-border contacts and communication.
In East and South-East Asia ethnic minorities and indigenous peoples are often disadvantaged in access to education, which also hampers their later opportunities in finding skilled employment. The ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) and the UN treaty bodies have expressed their concern, among others, on low school enrollment rates and poor access to vocational training opportunities in ethnic minority areas in many Asian countries, including Cambodia, and the lack of adequate opportunities for indigenous and ethnic minority children to receive instruction in their own language. Due to low education level and persistent prejudice persons belonging to ethnic minorities and indigenous peoples often also face discrimination in access to employment, and are concentrated in informal, casual employment, and in dirty dangerous and demeaning jobs with poor social security.21
Discrimination against ethnic minorities and indigenous peoples in access to occupation manifests often in lack of recognition and support for their traditional occupations. The CEACR and the UN treaty bodies have expressed their concern, among others, on poor access to land and resources to ensure indigenous people’s traditional occupations in Cambodia and impacts of mining and palm-oil plantations on indigenous groups’ livelihoods in the Philippines and Indonesia. One further concern is transmigration of other ethnic groups to areas traditionally inhabited by indigenous groups, and its impacts on public employment and traditional occupations of indigenous groups.The CEACR and UN treaty bodies have, for example, raised concern about rapid granting of concessions on lands traditionally occupied by indigenous grounps, while so far no indigenous communities have received any land title in Cambodia.22 & See also Section 2.4.3 Access to occupation below.
21 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111)” with respect to Viet Nam (2010) in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva); ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (2010), China (2010) and Philippines (2009) (Geneva); CERD: Concluding comments of the Committee on Elimination of Racial Discrimination: Cambodia (2010), China (2001), Japan (2010), Lao PDR (2005) and Philippines (2009) (Geneva); CESCR: Concluding comments of the Committee on Economic, Social and Cultural Rights: Japan (Geneva, 2001). 22 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111)” with respect to Indonesia (2008, 2007) in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva); ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (2012, 2010) and Philippines (2009) (Geneva); CERD: Concluding comments of the Committee on Elimination of Racial Discrimination: Cambodia (2010) and Philippines (2009) (Geneva); CESCR: Concluding observations of the Committee on Economic, Social and Cultural rights: Cambodia (2009).
20 I. Equality and non-discrimination: Key concepts
Globally, indigenous and tribal peoples are disproportionately represented among the poor. They account for over one per cent of the world’s poor, although they make up five per cent of the world’s population.23 Similarly in East and South-East Asia, poverty of ethnic minorities and indigenous peoples in many Asian countries has raised concerns about “de facto” discrimination against these peoples and groups.24
2.3.3 Social origin25
Discrimination on the basis of “social origin” arises when an individual is denied a job or access to a certain economic activity or only assigned particular jobs because s/he belongs to a widely recognized “class” in society or simply a group with clearly defined social characteristics. The discrimination may be based on socio-economic status, a socio- occupational category, a criminal conviction, a caste, and includes household registration if privileges are attached to this registration. Social origin in the meaning of the Convention No. 111 encompasses all of the grounds of birth, social status, wealth or other status on which discrimination is prohibited in the Cambodian Constitution and Labour Law.
Social origin may be viewed mainly in forms of social mobility, defined as the possibility for an individual to move from one class or social category to another.26 Prejudices and institutional practices based on social origin thus limit the social mobility of certain people.27
2.3.4 National Extraction
Discrimination in employment and occupation based on national extraction or national origin covers distinctions made on the basis of a person’s foreign origin, place of birth or ancestry.The ground of national extraction also includes national ethnic or linguistic minority groups and immigrant ethnic groups.28 Distinctions made between citizens with local origin and citizens with foreign birth or origins are one of the most evident examples.29
2.3.5 Religion
Discrimination based on religion covers acts and attitudes of intolerance towards persons who profess a particular religion or religious belief, or who profess no religion. It concerns the right to exercise one's own faith or creed and the right to act in accordance with it. The requirements of a job, occupation or trade may in certain circumstances hinder the free exercise of a religious practice. This happens in cases where a religion prohibits work on a day different from the day of rest established by law or in company practice, or in cases where the exercise of a religion requires a particular kind of clothing. A constraint may also arise with regard to oaths taken when taking up a specific job, position or type of employment.
23 ILO: Equality at work: Tackling the challenges (Geneva, 2007) 24 CERD: Concluding comments of the Committee on Elimination of Racial Discrimination: Lao PDR (Geneva, 2005). 25 ILO: “Equality in employment and occupation, General survey”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 75th Session (Geneva, 1988), p. 53. 26 ILO: “Special survey on equality in employment and occupation in respect of Convention No. 111”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 83rd Session (Geneva, 1996). 27 ILO: Equality at work: Tackling the challenges (Geneva, 2007). 28 Ibid. p. 32. 29 For examples, see ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to France and the Netherlands” in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2008); ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to France” in Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2006).
21 Equality and non-discrimination at work in Cambodia: Manual
2.3.6 Political opinion
Convention No. 111 protects persons holding opinions of a political nature. Political opinions play a role in moving social justice forward. The expression and demonstration of political opinion is, therefore, protected by Convention No. 111. Both individual persons and organizations have the right to express and demonstrate their political opinion.
The protection is not limited to differences of opinion within the framework of established principles, but also covers doctrines that are aimed at fundamental changes in the institutions of the State, as long as the propagation of such doctrines does not involve the use or advocacy of violent methods to bring about that result.
Generally, neither membership, nor non-membership of a political party should be grounds to discriminate against job applicants or employees. However, in exceptional circumstances it is permitted to discriminate on the basis of political opinion in employment when a convincing case can be made in relation to protecting the security of the State. & See Section 2.5.2 for further information.
2.4 Other grounds prohibited by national and international standards
Other common grounds of employment discrimination include: age, maternity, family responsibilities or even family status, health, disability and infectious diseases such as HIV and AIDS and Hepatitis B or genetic origin and status, nationality, sexual orientation, culture, language, birth, name and physical appearance. Among the international labour standards, for example, the Maternity Protection Convention, 2000 (No. 183) prohibits termination of women’s employment during pregnancy, maternity leave or the period following their return to work, except on grounds unrelated to pregnancy, childbirth or nursing. Provisions on non- discrimination and equality promotion are also included in the Workers with Family Responsibilities Convention, 1981 (No. 156), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Older Workers Recommendation, 1980 (No. 162), the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), the Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200) as well as the Migration for Employment (Revised) Convention, 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1973 (No. 143).
Countries are increasingly addressing the above mentioned additional grounds in national legislation. The Cambodian Constitution and national legislation prohibit discrimination on four additional grounds not covered by the Convention No. 111, namely disability, HIV status, language and membership of workers' union or the exercise of union activities.
2.4.1 Disability and health status
Equal rights to employment for persons with disabilities or health conditions are an important workplace issue. The persons with disabilities or health conditions should be allowed to fully participate in the labour market in accordance to their abilities, without discrimination or stigma related to their impairment. While particular impairments may be relevant to the normal exercise of particular jobs, they should first and foremost be met with efforts to accommodate the working environment in such a way that the person with the impairment can be regularly employed.
A disability or health condition may be of a physical, sensory, intellectual or psychosocial nature. A person’s state of physical and mental health or their health condition may be relevant - but is not automatically - essential for adequate job performance. Discrimination
22 I. Equality and non-discrimination: Key concepts
arises when an employment-related exclusion or disadvantage is based on a perception that persons with disabilities or health conditions, such as HIV, are unproductive, unable to perform a job or too costly to employ without such perception being supported by the facts of a particular situation.
Disability Alongside Convention No. 111, the ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) and the UN Convention on the Rights of Persons with Disabilities are the two key international instruments guaranteeing persons with disabilities equal opportunity and treatment in employment.30 While progress has been made in most East and South-East Asian countries to put prohibit discrimination on the ground of disability and to promote employment of persons with disabilities, in practice many challenges remain. The UN Committee on Economic, Social and Cultural Rights (CESCR) has noted that persons with disabilities continue to face discrimination in employment, among others, in Cambodia, China and Japan. The underlying reason is the deep-rooted inaccurate stereotype that persons with disabilities cannot be productive members of the society.31 & See lightbulb box “Changing approaches towards disability: From charity to inclusive workplaces” in Section 3.2.1 National policy.
HIV and AIDS The first international legal instrument to address discrimination on the grounds of HIV and AIDS in the workplace was adopted by ILO member States in 2010 in the form of the Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200). Augmenting the ILO 2001 Code of Practice on HIV and AIDS and the world of work, the Recommendation calls for eliminating discrimination and stigmatization of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status or the fact that they belong to regions of the world or segments of the population perceived to be at greater risk of or more vulnerable to HIV infection.32
Quick facts about HIV and AIDS
Discrimination and stigma against persons living with HIV and AIDS is often based on misinformation about the transmission routes of HIV, inappropriate fear of the disease, and prejudices about the morality of people who are infected. Dissemination of correct information on the nature of the disease is key to reducing discrimination and stigma against persons living with HIV and AIDS.
HIV cannot be transmitted through casual workplace contact, such as shaking hands, sharing food or using the same work tools, bathrooms or dormitory rooms. The virus can be transmitted through unprotected vaginal or anal sexual intercourse with an HIV- infected partner, transfusions of infected blood or other exchange of blood using infected needles or other piercing equipment, and from mother to child during pregnancy, at birth or during breastfeeding.
30 In the East and South-East Asian region the ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) has been ratified by China (1988), Japan (1992), Korea (1999), the Philippines (1991) and Thailand (2007). The UN Convention on the Rights of Persons with Disabilities has been ratified by China (2008), Lao PDR (2009), Malaysia (2010), the Philippines (2008) and Thailand (2008), and signed by Cambodia (2007), Indonesia (2007) and Viet Nam (2007). 31 CESCR: Concluding Comments of the Committee on Economic, Social and Cultural Rights: Cambodia (2009), China (2005), Japan (2001) (Geneva). 32 ILO Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200), Article 14.
23 Equality and non-discrimination at work in Cambodia: Manual
There is no cure for HIV, but the onset of AIDS can be postponed or even prevented with the appropriate use of medicines. With the increasing availability of antiretroviral therapy people with HIV are living longer and often have minimal or no loss of functional capacity. They may not experience any symptoms and those with access to the right medicines and treatment are able to live healthy and productive lives. However, only about 40 per cent of the 33 million infected people in the world have access to treatment.
2.4.2 Anti-union discrimination
Discrimination based on a person’s trade union membership, trade union leadership or trade union activities (such as organizing workers; representing workers in grievances with the employer; attempting to bargain collectively with the employer; or calling for a strike in accordance with legal procedures) is generally called anti-union discrimination. The Right to Organize and Collective Bargaining Convention, 1949 (No. 98) requires the law to provide workers with adequate protection against acts of anti-union discrimination and obliges the authorities to operate procedures that effectively enforce such protection. The principles laid down in the Convention belong to the fundamental principles and rights at work. The International Trade Union Confederation (ITUC) has reported anti-union discrimination in several East and South-East Asian countries, including Cambodia, Indonesia, the Republic of Korea, Malaysia and Thailand.33
2.4.3 Multiple forms of discrimination
Multiple forms of discrimination relate to the experience of discrimination on more than one ground. For example, discrimination on the grounds of ethnicity, migrant status or disability is often intertwined with sex discrimination, making it very hard for ethnic women, migrant women and women with disabilities to find a decent job.
Persons who experience discrimination on multiple grounds often find themselves in a vicious spiral of cumulative discrimination. Acknowledging the existence of multiple forms of discrimination is important in the promotion of non-discrimination, because all grounds of discrimination have to be tackled at the same time.
2.5 Equality and discrimination at different stages of the employment cycle
As mentioned earlier, Convention No. 111 covers both persons in employment and in occupation. Employment includes formal employment relationships, employment in the informal economy that is carried out under supervision of another person, and temporary or casual employment. Occupation includes a trade, a profession, subsistence farming, shop keeping, managing a self-employed business, or other means of making a traditional livelihood.
33 ITUC: Annual survey of violations of trade union rights 2010 (2010); ITUC: Annual survey of violations of trade union rights 2009 (2009).
24 I. Equality and non-discrimination: Key concepts
Action against discrimination at all stages of the employment cycle
Action to eliminate discrimination in employment and occupation has to be undertaken at all stages, before, during and after work: 1. Access to education and vocational training and guidance. 2. Access to employment and use of employment services. 3. Access to particular occupations. 4. Conditions of work. 5. Equal remuneration for work of equal value. 6. Career development based on individual character, experience, ability and diligence. 7. Security of tenure. 8. After retirement.
Convention No. 111, Article 1.(3); and Recommendation No. 111, Article 2(b).
2.5.1 Education and training
Skills, knowledge, education and training are some of the most relevant factors that should determine people’s opportunities and treatment in the labour market. As a result, it is crucial that people enjoy equal opportunities and treatment when preparing for labour market entry or advancement. Convention No. 111 refers to vocational training in a broad sense and covers any education or training that is necessary to obtain access to any given employment or a particular occupation. This also includes skills development and training facilities for workers in the informal economy.
Vocational guidance plays a key role in opening a broad range of occupations to all. Assistance in choosing an occupation to young persons or to other persons who may need it should be given based on the individual’s abilities and aspirations, without interference of stereotyped and archaic conceptions on what kinds of jobs or occupations are suitable to persons of a particular sex or ethnicity. A number of methods are used for this purpose, such as the dissemination of information about occupations, the preparation of recommendations in the light of personal abilities and social needs, or the joint participation of teachers and parents in fostering children's choice of an occupation.
In the past decades many countries in East and South-East Asia have made great achievements in promoting education for all. Among others, direct sex discrimination in education is becoming less common in most countries, although a preference to invest in boys’ education still exists when educational opportunities are scarce. Despite these advantages, there are still significant differences in educational attainment of different groups. Women, ethnic minorities, persons with disabilities and rural populations continue to be disadvantaged in access to education and many of them are illiterate. Literacy rate and school enrolment for ethnic minorities, persons with disabilities and residents in remote rural areas continues to be low, among others, in China, Cambodia and Lao PDR. Major obstacles to the education and vocational training of persons belonging to ethnic minorities include poor knowledge of the national language and unavailability of bilingual education.34 In
34 CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006) and Lao PDR (2005) (Geneva); CERD: Concluding observations of the Committee on the Elimination of Racial Discrimination: Cambodia (2010), China (2001) and Lao PDR (2005) (Geneva); CESCR: Concluding comments of the Committee on Economic, Social and Cultural Rights: Cambodia (2009) and China (2005) (Geneva).
25 Equality and non-discrimination at work in Cambodia: Manual
Cambodia, one of the root causes of women’s disadvantaged position in areas of education and employment is the strong gender stereotyping reflected in the traditional code of conduct chbab srey for women. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEARC) and the UN treaty bodies have asked the Government of Cambodia to refrain from disseminating and teaching those elements of the traditional code of conduct that discriminate against women and to implement a national campaign to eliminate stereotypes associated with men’s and women’s traditional roles in the society.35
Overall, in East and South-East Asia, the gender gap in education in primary and secondary education has narrowed and a growing proportion of students in tertiary education are women. Despite these advances, there are still significant differences in the fields of study that men and women choose, with both sexes tending to select training in fields that are traditionally dominated by their own sex.36 This sex segregation in training leads later to occupational sex segregation into “women’s jobs” and “men’s jobs” and a mismatch between women’s educational achievements and their opportunities in the labour market. To repeal these biases in the labour market the CEACR and the UN treaty bodies have urged the governments in East and South-East Asia, including Cambodia, to develop measures aimed at diversification of women’s academic and professional choices.37
2.5.2 Access to employment and use of employment services
Discrimination occurs more often during the recruitment process than at any other stage of the employment cycle. Therefore, individuals seeking employment need to be protected against discrimination during the recruitment or hiring process from beginning to end. This involves development of non-discriminatory selection and testing criteria, as well as prohibiting discriminatory requirements in job advertisements and scrutiny of hiring decisions. In Cambodia the persistence of discriminatory recruitment practices – including the use of discriminatory job advertisements calling for only men or only women to apply – have also been noted by the ILO Committee of Experts on Application of Conventions and Recommendations (CEACR), which has asked the Government of Cambodia to address these practices.38
Discrimination in access to employment is one of the most common forms of discrimination also in the East and South-East Asian labour markets. Among the most disadvantaged are women and ethnic minorities. In many countries, including Cambodia, persons with disabilities also suffer from the inaccurate stereotype that they cannot be productive members of the society, resulting in difficulties in obtaining skilled employment.39
35 ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (2011); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006). 36 The family and education and training systems stream youth into making occupational choices that are considered suitable to them. Many young women and men conform to the gender stereotypes in their society and select a “women’s job” or a “men’s job” respectively. Information about or experience with labour market discrimination may also be internalized and shape the training and job choices of women and men. 37 CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006), Indonesia (2007), Lao (2005) and Malaysia (2006) (Geneva); CERD: Concluding observations of the Committee on the Elimination of Racial Discrimination: Cambodia (2010), China (2001), Japan (2010) and Lao PDR (2005) (Geneva); CESCR: Concluding comments of the Committee on Economic, Social and Cultural Rights: Cambodia (2009), China (2005) and Japan (2001) (Geneva). 38 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2011, 2010). 39 See for example, CESCR: Concluding observations of the Committee on Economic, Social and Cultural Rights: Cambodia (2009) and China (2005) (Geneva).
26 I. Equality and non-discrimination: Key concepts
As mentioned above, with regards to gender equality, the ILO CEACR and the Committee on the Elimination of Discrimination against Women (CEDAW) have raised concerns, among others, on inadequate protection against discrimination in hiring in law and in practice in many countries and the persistent mismatch between women’s educational attainment and their opportunities in the labour market. Due to traditional ideas on what kinds of work is suitable for women and men and prevailing prejudices regarding women’s abilities employers in many countries continue to prefer male employees for most jobs, and women find their occupational choices limited at the recruitment stage. This discrimination in recruitment leads to and results in horizontal and vertical job segregation in Asian labour markets.40 The CEACR and the UN Committee on the Elimination of Discrimination against Women (CEDAW) have specifically noted the need to promote women’s access to a wider range of occupations in Cambodia, including those at senior levels and in jobs traditionally dominated by men.41
As elsewhere in the world, the universal characteristics of the male-female job divide in Asia are: • Female jobs are found in the lower levels of the job hierarchy, and female-dominated occupational categories commonly reflect traditional female roles in the domestic and sexual spheres. Women are typically found in the care economy and are concentrated in the five C occupations: caring, cashiering, catering, cleaning and clerical.42 • Women form the majority of workers on short-term contracts and in part-time work, and in many countries a large share of the female workforce is engaged in irregular and atypical work. Their share in informal employment is also considerable.43 • The number of occupations available to women is much smaller than those available to men – known as horizontal job segregation by sex. There are around seven times as many ‘male’ as ‘female’ occupations. Women also tend to occupy lower ranks than men in the job hierarchy – known as vertical job segregation by sex. • The types and levels of jobs mainly held by men as compared to those mainly held by women usually have more status, and better employment conditions, including substantially higher pay rates. Women predominate in jobs and economic sectors with lower pay than men and at lower levels of the job hierarchy, irrespective of their individual abilities.44
Worldwide, the use of labour market intermediaries has become increasingly common, and discrimination abounds especially in placement services for employment agency workers. Explicit measures against discrimination in the use of employment services are therefore, called for. For example, employment services agencies should not screen or follow discriminatory instructions from organizations or companies using their placement services, and employers have a responsibility to ensure that such agencies do not engage in discriminatory employment practices.
40 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111)” with respect to Viet Nam (2010) and the Philippines (2009) in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Malaysia (Geneva, 2006). See also CESCR: Concluding observations of the Committee on Economic, Social and Cultural Rights: China (Geneva, 2005). 41 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2012, 2010); Committee on the Elimination of Discrimination against Women: Concluding comments of the Committee on Elimination of Discrimination against Women: Cambodia (Geneva, 2006). 42 ILO: Global employment trends for women: Brief (Geneva, 2007). 43 N. Haspels and E. Majurin: Work, income and gender equality in East Asia (Bangkok, ILO, 2008). 44 R. Anker: Gender and jobs: Sex segregation of occupations in the world (Geneva, ILO, 1998); L. Wirth: Breaking through the glass ceiling: Women in management (Geneva, ILO, 2001 and 2004 update).
27 Equality and non-discrimination at work in Cambodia: Manual
2.5.3 Access to occupation
Discrimination may also affect the ability of self-employed persons to earn a livelihood, and start or sustain a business or work carried out on their own account. It may affect in particular material conditions necessary for carrying out an occupation, such as access to land, credit, business premises, operating licenses or permits or relevant goods and services. For example, a country discriminates on the basis of sex if women, or certain categories of women, such as unmarried women without dependants, may not own property or benefit from statutory facilities offered for obtaining access to land.
Convention No. 111 upholds the right of indigenous and tribal peoples to earn their living with respect to the exercise of their traditional occupations. In such cases development and employment promotion programmes often need to be combined with safeguarding indigenous and tribal control over natural and environmental resources in their areas of traditional habitation.45 The ILO CEACR and the UN treaty bodies have raised concerns about discrimination suffered by indigenous peoples as a result of property disputes and transmigration in several Asian countries. The supervisory bodies have urged the respective governments to guarantee the indigenous groups’ rights in the context of, among others, palm-oil plantation projects in West Kalimantan in Indonesia, granting of concessions on lands traditionally occupied by indigenous peoples in Cambodia, resettling of ethnic groups from the mountains and high plateau to the plains in Lao PDR, population transfers to territories inhabited by indigenous groups in Viet Nam, and mining on indigenous territories in the Philippines.46
2.5.4 Conditions of work
The Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111) emphasizes the importance of eliminating discrimination in regard of conditions of work. It requires action in the following areas: • Advancement in accordance with 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 welfare facilities and benefits provided in connection with employment (paragraph 2(b)).
Equal remuneration The principle of equal remuneration between men and women for work of equal value – in brief, equal pay or pay equity – was established in the ILO Equal Remuneration Convention, 1951 (No. 100). The principle was later incorporated into Convention No. 111, which broadens the protection to prohibit pay discrimination on all grounds covered by Convention No. 111.
45 ILO: “Equality in employment and occupation, General survey”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 75th Session (Geneva, 1988), para 35. 46 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Indonesia” in Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2008); CERD, Concluding observations of the Committee on Elimination of Racial Discrimination: Cambodia (2010), Lao PDR (2005), Philippines (2009) and Viet Nam (2001) (Geneva); CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Cambodia (2009) and Philippines (2008) (Geneva).
28 I. Equality and non-discrimination: Key concepts
The principle of equal remuneration for work of equal value refers to rates of remuneration established without discrimination, and solely based on the nature and actual contents of the job. Remuneration of a worker must not be based on the sex, ethnicity, religion, or any other personal characteristics of the person applying for or filling a job or occupation, but on the intrinsic characteristics of the job, such as the required knowledge, skills and experience, efforts, responsibilities and working conditions. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has asked the Government of Cambodia to ensure that the principle of pay equity included in Article 106 of the Cambodian Labour Law goes beyond equal remuneration for the same, equal or similar work, but also encompasses work that is of an entirely different nature, which is nevertheless of equal value. The CEACR has urged the Government of Cambodia to give full legislative expression to the principle of equal remuneration for men and women for work of equal value to effectively address direct and indirect pay discrimination that results from the undervaluing of work performed exclusively or predominantly by women.47
The gender pay gap continues to be considerable in East and South Asian countries. In 2005, women’s income amounted to less than or just half of men’s income in Japan, Malaysia, the Republic of Korea and Singapore; to around 60 per cent of men’s income in Hong Kong SAR, the Philippines and Thailand; and to around two-thirds of men’s income in China and Viet Nam.48 With regards to the gender wage gap in Cambodia, the CEACR has in particular noted problems in the Cambodian construction sector, where in 2009 wages for men amounted to 7,000 riels per day while women earned only 5,000 riels.49 The CEACR has repeatedly urged the governments in the region to take measures to reduce the gender pay gap and to also address the underlying reasons – including occupational sex segregation and undervaluing of jobs traditionally held by women.50
The CEACR has noted that in order to establish whether different jobs are of equal value, there has to be an examination of the respective tasks involved.51 For this reason, the CEACR has encouraged the Government of Cambodia, with the cooperation of workers’ and employers’ organizations, to take steps towards the development and promotion of objective job evaluation methods.52 These measure the extent to which different jobs are of equal value by analyzing and comparing the following job characteristics: 1. Skills and qualifications gained through education, training and work experience. 2. Duties and responsibilities in terms of using technology, and dealing with people and financial resources. 3. Physical, mental and psycho-social effort. 4. Working conditions (physical, psychological and social).
Equal remuneration for work of equal value should not only apply to the basic or minimum wage, but also to any additional benefits or emoluments arising out of the worker's employment paid by
47 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012). 48 N. Haspels and E. Majurin: Work, income and gender equality in East Asia (Bangkok, ILO, 2008). 49 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2011). 50 See for example ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100)” with respect to Malaysia (2010) and Viet Nam (2010) in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva). 51 ILO: “General observation concerning Equal Remuneration Convention, 1951 (No. 100)”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 96th Session, Geneva, 2007. 52 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2012).
29 Equality and non-discrimination at work in Cambodia: Manual
the employer to the worker, directly or indirectly, and in cash or in kind. This means that all the family and housing allowances, travel and food allowances, bonuses and special pension or health care schemes should be paid to male and female workers in accordance to the value of their work, without any discrimination on the basis of sex or other grounds. In this regard the CEACR has noted that the definition of “wage” in Article 103 of the Cambodian Labour Law is too narrow. To bring the definition in conformity with the Equal Remuneration Convention, 1951 (No. 100), health care, family allowances, travel expenses and benefits granted exclusively to help the worker do his or her job should also be considered as part of the wage and paid in accordance with the principle of equal pay for work of equal value.53
The scope of Conventions Nos. 100 and 111 extends to “all workers” and is not limited to wage and salary earners in formal employment, but includes all workers in informal employment, such as the self-employed in agriculture, in small trade or in domestic service.
Box 4. Problems in understanding the “value” of women’s work in Asia
In its General observation concerning Convention No. 100 published in 2007 the CEACR noted that while the principle of equal remuneration for men and women for work of equal value is widely accepted, the scope of the concept and its application in practice can be more difficult to grasp and apply. Most often the difficulties in applying the Convention in law and in practice result from a lack of understanding of the scope and implications of the concept of "work of equal value".
According to the CEACR, "work of equal value" includes but goes beyond equal remuneration for "equal" – that is, the "same" or "similar" work – and also encompasses work that is of an entirely different nature, but nevertheless of equal value. The principle is not limited to comparisons between men and women in the same establishment or enterprise, but allows for a much broader comparison to be made between jobs performed by men and women in different places or enterprises, or between different employers.
As several other ILO member States that have ratified Convention No. 100, many Asian countries face difficulties in understanding the full scope of the concept of “work of equal value”. The CEACR has noted that national legislation falls short of fully reflecting the principle of equal remuneration for work of equal value, among others, in China, Indonesia, Malaysia, the Philippines and Viet Nam, and has urged the respective governments to bring their national laws into full compliance with Convention No. 100. The Committee on the Elimination of Discrimination against Women (CEDAW) has also urged several governments in the Asian region to recognize the principle of equal pay for work of equal value in accordance with ILO Convention No. 100.
Sources: ILO: “General observation on Equal Remuneration Convention, 1951 (No. 100)” in Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2007); ILO: “Individual observation on Equal Remuneration Convention, 1951 (No. 100)” with respect to China (2009), Malaysia (2010), the Philippines (2009) and Viet Nam (2010) in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006), Indonesia (2007) and Singapore (2007) (Geneva).
53 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012).
30 I. Equality and non-discrimination: Key concepts
Promotion and career development Workers are fundamentally entitled to “advancement in accordance with their individual character, experience, ability and diligence”. The criteria commonly used, for example, in collective agreements to guide the promotion of workers are performance, qualifications, merit, seniority, experience, past training, and fitness to perform the tasks of the new post.
Structural or systemic discrimination in regard of promotion leads to vertical job segregation – the situation in which the higher levels of management in a company or economy are dominated by, for example, persons of a particular sex or an ethnic majority group and lower levels are dominated by persons of the other sex or an ethnic minority group.
The phenomenon of women remaining in low-level positions not reaching the top is known as the glass ceiling or the sticky floor. The career obstacles leading to women’s low representation in senior positions are often due to biased gender stereotypes, for example, that “men are naturally more suitable for leadership positions than women”. These kinds of stereotypes are incorrect, and should not be allowed to form the basis upon which promotions are decided. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the UN Committee on the Elimination of Discrimination against Women (CEDAW) have noted the need to accelerate women’s access to promotion and senior level jobs in Cambodia.54
As on-the-job training often gives access to increased responsibility and promotion, it is important to ensure that all capable workers have equal access to training and nobody is discriminated. For example, women are often discriminated in access to training because employers assume that they are less committed to staying in the company and pursuing their career than their male colleagues.
Working environment A good and supportive working environment involves creating a safe working environment free from (sexual) harassment, providing adequate maternity protection and enabling both male and female workers to balance work and family responsibility. Employers should also provide reasonable accommodation to workers with special needs relating to their disability, health condition, religious practice or any other personal need.
Job security or security of tenure Security of tenure denotes the guarantee that dismissal must not take place on discriminatory grounds, but must be justified by reasons connected with the worker's conduct, his or her ability or fitness to perform the job functions, or the strict necessities of the operation of the undertaking concerned. The ILO Termination of Employment Convention, 1982 (No. 158) explicitly prohibits discriminatory termination of the employment relationship for reasons related, among others, to race, sex, pregnancy, maternity leave, temporary absence from work because of illness or injury, or union membership or participation in union activities (Articles 5 and 6).
Discrimination may also take place in the context of collective dismissals or redundancies for economic reasons. Recent examples of discriminatory lay-offs include a disproportionately high number of dismissals of persons with disabilities in Japan due to the financial crisis in late 2008 and early 2009, and government policies in Malaysia and Singapore encouraging companies to dismiss foreign workers before terminating employment contracts for
54 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2012, 2010); CEDAW: Concluding comments of the Committee on Elimination of Discrimination against Women: Cambodia (Geneva, 2006).
31 Equality and non-discrimination at work in Cambodia: Manual
nationals.55 More subtle indirect discrimination may also occur as a result of the criteria selected for determining the order of redundancies. In many cases such selection criteria are specified in collective agreements. For example, collective agreements that stipulate that married women or women who are not heads of household may be declared redundant first when companies have to lay off workers, are discriminatory.
Criteria for selecting redundant workers commonly include age, length of service, number and dependants, and ability to obtain alternative employment. In such situations, cases of inequitable treatment between the sexes may occur if too much weight is given to seniority in so far as, statistically, women have less seniority than men.
Women often have lower job security than men. Employment in informal sector and irregular work arrangements such as part-time or other temporary types of work, home-based work or contract labour goes hand in hand with low job security, and women’s concentration in these jobs affects them disproportionately. In addition, women’s job security in any sector tends to be lower than men’s, and in case of retrenchment they are often the first to go. Discriminatory practices in dismissal, lay-offs and redundancies are common, often targeting (married) women of childbearing age and middle-aged women.
The Cambodian Labour Law permits use of fixed duration contracts up to two years of employment. Fixed duration contracts convert to undetermined duration contracts if any renewal causes the cumulative total time under the employment contracts to extend beyond the total duration of two years.56 The Cambodian Arbitration Council has ruled that an employer cannot refuse to renew a fixed duration contract for reasons of discrimination, for example, on the grounds of trade union membership.57
Social security after retirement Several Asian countries, including China and Viet Nam, maintain different retirement ages for men and women. The laws and regulations obliging women to retire earlier than men were designed in the past to protect women and to acknowledge their contribution to unpaid household and family care. However, this type of measures is increasingly considered to be outdated as it leads to unintended negative effects on women’s income during and after their working life as follows: • Pay inequities at the end of women’s career, as they need to stop paid work and retire earlier than men, and cannot progress into senior, higher-paying jobs. • Fewer social security benefits, as the level of benefits is usually calculated on the basis of the total number of years in employment or on the income earned during the last three or five years in employment when workers are eligible to enter more senior positions.
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has urged governments to repeal the discriminatory provisions and provide an equal retirement age for all women and men.58 The official retirement age in Cambodia for civil servants ranges from 55 to 60 depending on the level of the position. In the private sector,
55 ILO: Equality at work: The continuing challenge (Geneva, 2011), pp. 8, 36; Japan, Ministry of Health, Labour and Welfare: Employment measures in post-financial crisis Japan (Tokyo, 2009), p. 30; M Abella and G. Ducanes: The effect of the global economic crisis on Asian migrant workers and governments’ responses, technical note for High Level Regional Forum on Responding to the Economic Crisis, Manila, 18-20 Feb. 2009, p. 9. 56 Arbitration Council of Kingdom of Cambodia: Arbitral Award 10/03-Jacqsintex. 57 Arbitration Council of Kingdom of Cambodia: Arbitral Award 28/07-Dae Kwang. 58 N. Haspels and E. Majurin: Work, income and gender equality in East Asia (Bangkok, ILO, 2008); See, for example, ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Viet Nam (Geneva, 2005).
32 I. Equality and non-discrimination: Key concepts
the retirement age is set in Social Security Law at the age of 55 years old and in internal company regulations beyond that age. Employers should not require women employees to retire earlier than men workers, if women wish to continue working.
2.6 What does not constitute prohibited discrimination?
2.6.1 Differential treatment based on the inherent requirements of the job
Not all measures that have an effect on a certain group are discriminatory in and of themselves. Such measures are permitted if they are necessary and proportionate to achieve a legitimate objective. For example, employers must always be able to recruit people who match the inherent requirements of the job in question.
Inherent requirements of the job refer to the necessary, objective, genuine and proportionate requirements that a job applicant or worker needs to have in order to be able to perform the essential functions, duties and responsibilities of the job in question. In exceptional cases a personal attribute such as sex, religion or absence of a specific impairment can be an inherent requirement of a job, if only a person with these characteristics can perform the essential functions of the job in question. For example, • Sex can be an inherent requirement for male or female roles played in theatrical performances. • Political opinion can be an inherent requirement for senior positions in government institutions. • Muslim faith can be an inherent requirement for employment by a butcher producing halal meat.
In order to be acceptable, the requirements which give preference or exclude certain people based on personal characteristics need to be: • Objective and justifiable. • Inherent to or necessary for the job. • Not disproportionate, that is not more restrictive or exclusive than is needed for the job.
If the job requirements do not meet these standards, they will often result in indirect discrimination. A case-by-case approach is necessary to determine whether a certain personal characteristic is a real, genuine occupational requirement for a certain job or not.
A person’s level of education, knowledge and skills normally relates directly to his or her performance and productivity on the job. As such, these factors are generally understood to be “inherent requirements of the job”. In the course of economic development, labour markets tend to demand higher educational qualifications and more specialized skills which translate into higher-paying jobs for skilled jobseekers especially if there are labour shortages. However, when there is an abundant supply of labour, education and skills qualifications can become dissociated from the specific requirements of a particular job and can become discriminatory in their own right. Recruitment procedures and practices which stipulate high educational requirements for low-skilled jobs are a considerable problem for many jobseekers in many countries.
2.6.2 National security
Article 4 of Convention No. 111 provides that measures affecting an individual who is justifiably suspected of or engaged in activities prejudicial to the security of the State do not amount to discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice.
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Measures affecting the job opportunities or treatment of an individual are not considered to be discriminatory if they relate to violent or harmful activities that a person has actually undertaken, and not merely to his or her membership of a particular group. However, the sole membership of a group bent on peacefully changing the State’s institutions is not sufficient to justify exclusion.
2.6.3 Protective and affirmative action measures
Convention No. 111 requires ratifying States to develop and implement a national policy for promoting equality of opportunity and treatment in the labour market through practical action. Article 5 of the Convention states that “special measures of protection or assistance” laid down in other international labour conventions or recommendations are not considered discriminatory. Moreover, it provides that measures which are designed to meet the particular needs of persons or groups of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, require special protection or assistance are not considered to be discriminatory. As such, these special measures are a recognized exception to the principle of equality of opportunity and treatment as this type of “positive discrimination” is vital to achieve equality in practice. Two main types can be distinguished: • Protective measures. • Affirmative action or positive measures.
Protective measures Protective measures refer to measures provided to, for example, pregnant women, workers with disabilities or health conditions to protect them during their vulnerability. Protective measures to these groups are necessary to protect their well-being and health. For women, the most important of these protective measures is provision of adequate maternity protection, consisting of maternity leave, cash and medical benefits, health protection measures, employment protection and support to breastfeeding upon return to work.
Another type of protective measures are blanket protection measures, which were a common practice in the past to protect groups such as children, young or older workers and women. The developments in scientific research, work-related technology and demographics have gradually raised questions whether blanket protection measures traditionally afforded to some of these groups actually deny or restrict legitimate employment opportunities.
The question has been raised most notably with respect to women workers who are traditionally “protected” as a group by legal provisions prohibiting or restricting their employment in defined categories of strenuous work. Often, scientific research does no longer support the view that under normal circumstances such work is any more unsuitable for women than for men. As a result, women should no longer be “protected” by denying or restricting their employment in certain jobs or work processes in general, and protection should be restricted to those circumstances and areas where women are objectively different from men. As mentioned above, one such key circumstance is maternity and reproductive health, in particular pregnancy, childbirth and a period after delivery.
Measures that protect women workers by banning their employment in work and work processes considered hazardous to them, remain to be a subject of heated debate in several countries – defended by some as necessary and criticized by others as contrary to the objective of equality. In many cases, labour law protecting women is often not based on scientifically supported assumptions, but on generalizations based on stereotypes regarding roles of men and women in society and in the labour market. For example, in Viet Nam, women are prohibited from working in workplaces which are not suitable to women’s
34 I. Equality and non-discrimination: Key concepts
psychiatric and psychological conditions or to engage in “intensive labor beyond endurance”. In addition, 49 jobs are off limits to female workers of all ages, including driving trains and trucks with a tonnage bigger than 2.5 tons, and uprooting trees with a diameter greater than 40 cm.59
In practice, such laws have often become an obstacle to women’s right to work: • Scientific research does not support the notion of a significant difference between men's and women's biological response to physical, biological or chemical hazards. • Similarly, the average physical strength of men is not so different from that of women and some women can be even stronger than some men.
For example, labour law often prescribes a blanket ban on night work for women. In reality, night work is unhealthy not only for women because they are mistakenly perceived to be intrinsically weaker, but also for men because of fatigue, disruption of natural sleep patterns, etc. So, if men and women choose to work at night, they both need to be equally protected, while women need to be protected separately only in the aspect of maternity in which they are objectively different from men. The trend in the international community, therefore, is to protect both men and women from work and work processes that may damage their reproductive functions, and in all other cases strife to ensure decent working conditions for all workers.
The United Nations treaty bodies request governments to periodically review laws which protect women in the light of new scientific knowledge or technology to decide whether protective laws are still necessary. The ILO Committee of Experts on the Application of Conventions and Recommendations also requests governments to ensure that employment restrictions for women are exclusively related to maternity and that those that are based on stereotyped assumptions on women’s role in society and the labour market are repealed.
Affirmative action or positive measures Affirmative action refers to a wide range of positive measures to improve the status of less advantaged groups in the labour market, or more generally, in regard of their opportunities to secure a livelihood (e.g. as self-employed, as a subsistence farmer, as a nomadic cattle- herder etc). Affirmative action measures most frequently operate in spheres such as employment, education or contracting, but can also target land allocations, access to credit or development programmes. Affirmative action can be geared towards achieving specific targets and legal compliance or rely more on individual or corporate responsibility. Affirmative action may cover different stages and aspects of the employment relationship, and often include setting goals in the form of targets or quota in hiring, training or promotion which allocate a certain share of positions to members of the under-represented groups.
The adoption of affirmative action measures stems from the recognition that the legal banning of discrimination is necessary but not sufficient in itself to create equity in the world of work. For this reason special measures need to be designed and implemented to redress the effects of past and continuing discrimination against specific groups. These measures are known by many names. Within ILO they are generally referred to as affirmative action or positive measures.
Affirmative action measures comprise special, usually temporary, measures to establish equality of opportunity and treatment in actual labour market practices. They are usually targeted at a particular group, such as one sex, race or ethnic group, which has been subject
59 Circular 03/TT-LB dated 28 January 1994 issued by the Ministry of Labour, Invalids and Social Affairs (MOLISA) and Ministry of Health (MOH), in H. Nguyen ThiDieu: Unpublished training materials (Ho Chi Minh, 2011).
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to discrimination arising out of a history of oppression of one group by another. They aim at offsetting the disadvantages arising from existing attitudes, behaviour and structures based on stereotypes and stigma, and at re-establishing a balance between different groups in the labour market. In Cambodia, for example, the Law on the Protection and the Promotion of the Rights of Persons with Disabilities establishes a quota for employment of persons with disabilities (Articles 34-35).
Affirmative measures – just like the protective measures referred to above are only justified by the aim of protection and assistance which they are to pursue. Affirmative action measures for most groups (with the exception of some persons with disabilities and health conditions) need to be temporary and should be proportional to the nature and scope of the problem that they intend to redress. They should be reviewed periodically to ensure that their legitimacy has not been overtaken by progress. They should be removed and adjusted once the consequences of discrimination have been rectified.
& See Section 3.2.2 Design and implementation of affirmative action below for more information.
Box 5. Use of affirmative action measures in Asia
Many countries in the East and South-East Asian region have adopted affirmative action measures to accelerate the pace towards substantive equality in society and the labour market. Some examples of affirmative policies from the Asian region include: • Privileged access to public-sector jobs, university places and government contracts for Bumiputras (Malays and indigenous groups of Sabah and Sarawak) in Malaysia. • Cambodia State Secretariat of Civil Service Guidelines (2008) providing that female candidates or candidates belonging to ethnic minorities or coming from remote regions may benefit from priority in recruitment. The Guidelines instruct all government agencies to apply temporary measures targeting between 20-50 per cent women among new recruits. • 30 Per cent quota for women candidatures for political parties in the legislature in Indonesia, established in Law No.12 of 2003 on General Elections. • Special measures to promote education and employment for native Papuans in the Special Autonomy Law for Papua province in Indonesia. • Obligation to hire indigenous peoples in proportion to their share in the population established in the Philippines Indigenous Peoples’ Rights Act (IPRA) 8371 of 1997 and its Implementation Rules.
However, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the UN treaty bodies have noted that the use of affirmative measures is still inadequate in many Asian countries. For example, the Committee on Elimination of Discrimination against Women (CEDAW) has urged the governments in Cambodia, Lao PDR, Thailand and Viet Nam to adopt affirmative action policies to accelerate achievement of de facto equality for women and men in the society and the labour market. The implementation of existing affirmative action policies is also often lax, due to lack of sanctions or enforcement mechanisms to ensure compliance.
36 I. Equality and non-discrimination: Key concepts
Source: ILO: Equality at work: Tackling the challenges (Geneva, 2007); ILO Committee on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to the Philippines (Geneva, 2009); CEDAW: Concluding comments of the Committee on Elimination of Discrimination against Women: Cambodia (2006), Lao PDR (2005), Thailand (2006) and Viet Nam (2007) (Geneva); CESCR: Concluding comments of the Committee on Economic, Social and Cultural Rights: Cambodia (Geneva, 2009); Government of Indonesia, Law on Special Autonomy for the Papua Province, No.21/2001.
Reasonable accommodation One type of special measure is commonly referred to as “reasonable accommodation”. It reflects the idea that employers may be expected to make a reasonable effort to accommodate the needs of a particular group of persons such as people with disabilities, older workers or workers following a particular religion. Reasonable accommodation means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden on the employer. What is reasonable and what is undue hardship will depend on a range of factors, including the nature and cost of the measure in relation to the size, resources, nature and structure of the employer’s operations.
In Cambodia, provision of reasonable accommodation for persons with disabilities is a legal obligation for employers under Article 38 of the Law on the Protection and the Promotion of the Rights of Persons with Disabilities. The UN Convention on the Rights of Persons with Disabilities considers denial of reasonable accommodation as a form of discrimination and both this Convention as well as ILO Recommendation No. 200 on HIV and AIDS in the world of work indicate that countries should take appropriate steps to ensure that it is provided.
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3. Methods of application of Convention No. 111
3.1 What are the State’s obligations under the Convention?
Convention No. 111 encourages States to “declare and pursue” a national policy to promote equality of opportunity and treatment in employment and occupation. Such a policy normally includes both legal provisions prohibiting discrimination and proactive measures to achieve equality in labour market outcomes in practice.
Convention No. 111 provides that the national policy should be pursued “by methods appropriate to national conditions and practice”. This means that there is ample space for flexibility in designing such a national policy, but also that the policy must be progressive and make a practical and effective contribution to the elimination of discrimination where and when it occurs. The Convention itself lists certain spheres of action in which a national policy should be operational. These include: • Enacting and enforcing appropriate legislation. • Repealing discriminatory statutory provisions and administrative practices or instructions. • Ensuring non-discrimination in public employment, vocational guidance and training, as well as employment services under the government’s authority. • Developing educational programmes. • Cooperation with employers’ and workers’ organizations, as well as other appropriate bodies, such as national equality or human rights commissions.
3.2 Promoting and enforcing Convention No. 111 through policies and legislation
3.2.1 National policy
The approach preferred by most countries in formulating their national policy is to adopt legislation, accompanied by more or less extensive regulations. It should be clear from the spheres of action outlined above, however, that a national policy cannot be reduced to legislation. A national policy may and should manifest itself in: • Constitutional provisions. • National plans and programmes, which are particularly useful in setting out budgetary implications as well as respective functions and responsibilities of public authorities, employers, workers and others, in light of the complementary character of such responsibilities and of national conditions and practice. • Public statements at the highest political level regularly re-endorsing support for the policy. • Government policy papers. • Collective agreements. • The existence of independent equality institutions as well as the guidance they provide (e.g. codes of practice). • Specific public policies geared at equitable and inclusive economic and social development.
Equality and non-discrimination principles should be incorporated in active labour market policies and programmes – ranging from employment promotion, labour contract and social protection measures to training, enterprise development and social finance programmes geared at poverty reduction with application monitored through appropriate mechanisms and procedures. Clauses prohibiting discrimination and harassment may also be included in standard workplace rules or company regulations issued by the government.
38 I. Equality and non-discrimination: Key concepts
Governments are generally major employers in terms of employee numbers and they also have an example function as specified in many international legal instruments. Government can set the example by applying equality and non-discrimination principles in public sector personnel and human resource policies. Observance of the principle of non-discrimination can be also included as a requirement in public procurement and public lending policies.
Objective of the national equality policy The objective of the national equality policy should be to promote substantive equality for all groups of workers in the labour market. This means not just repealing discriminatory provisions and practices, but implementing support measures to assist disadvantaged groups in realizing their full potential. The aim of the national equality policy should be to ensure that differences in labour market outcomes reflect a free choice of occupation for all individuals without interference of any discrimination, bias or prejudice.60
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has emphasized the importance of effectiveness when assessing whether a given country has declared a national policy in accordance with Convention No. 111. It has noted that just establishing a policy and taking measures is not enough; the national policy needs to be effective in securing factual results in improving labour market outcomes for disadvantaged groups of workers.61
The adoption of ILO Conventions No. 100 and No. 111 in the 1950s marked a major shift in the approach to equality promotion – namely the shift away from protection to promotion of equality in law and equality in outcomes. This transition and change in approaches is best demonstrated in the historical development of strategies for the elimination of sex discrimination and promotion of gender equality during the 90 years of ILO history (see below).
While the policy shift to promotion of substantive equality has been consolidated in international standards a few decades ago, understanding of substantive equality is still lacking at national level in some countries. Noting the challenges in tackling “de facto” discrimination, the CEACR has encouraged member States to take further proactive measures to promote substantial equality, including affirmative action, awareness raising, training and coherent policies in areas affecting equality of opportunity and treatment in employment and occupation.62
Shifts in international approaches to gender equality promotion
Protection: The first ILO conventions adopted in the early twentieth century aimed exclusively at protecting women. Women were perceived as “weak” and more fragile than men, and in need of special protection from work perceived as “unsuitable,” “unsafe” and “inappropriate” for them. Early standards contained provisions on prohibiting the employment of women at night, in underground work and with dangerous substances like lead. In later years, it was found that the protectionist perspective of barring women from certain types of employment or work processes perpetuated sex discrimination in the guise of protection and reinforced the
60 ILO: Time for equality at work (Geneva, 2003), p. 26, para. 83. 61 ILO: “Fiftieth anniversary of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 98th Session (Geneva, 2009), para. 107. 62 Ibid. para. 117.
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subordination of women. More recently, this type of protection has also become known as “protective equality”.
Equality in law or “formal equality”: Gender equality was expressed formally and explicitly for the first time in international law in 1948 when the Universal Declaration of Human Rights recognized equality, non-discrimination and equal remuneration as human rights that all human beings should enjoy regardless of their sex. The adoption of Conventions No. 100 and No. 111 marked a shift in international labour standards from an exclusive concern with the protection of women to the promotion of equality between men and women in employment and occupation. The standards promote the removal of barriers to women’s equality both in law and in practice, and considerable achievements were made in, for example, repealing discriminatory statutory provisions from national laws.
While Conventions No. 100 and No. 111 recognize the importance of special support measures, in some countries equality in law has been understood to mean that men and women are to be considered the same and should be treated in an identical manner, regardless of their biological and social differences. In practice this “sameness” perspective has proven to further burden women as male and female realities are not the same.
Equality in outcomes or “substantive equality”: By the early 1980s, it had become clear that removal of legal barriers to women’s equality in the labour markets was necessary but not sufficient to realize equal labour market outcomes and substantive equality for women. This led to a renewed emphasis on analyzing possible differences and seeking to eliminate discrimination of disadvantaged groups through corrective, positive measures. Within the employment and labour fields, it was realized that achieving full, substantive equality for women in the labour market requires more equal sharing of family responsibilities between women and men, and workers with and without family responsibilities. Thus, in 1981, ILO member States adopted Convention No. 156 which provides policy guidance for enabling workers with family responsibilities to engage in employment without discrimination.
Since the Fourth World Conference on Women in Beijing in 1995 gender mainstreaming63 forms part of the global strategies to achieve gender equality goals. Many international and national organizations, including governments, have taken steps to institutionalize gender mainstreaming policies and practices within their organizations, but much more remains to be done to achieve equality in outcomes. For this reason, in recent years, women’s advocates have started to call for “gender justice” in exploration of new ways to provide redress for the ongoing gender based injustices from which women suffer. Gender justice is about the ending of, and the provision of redress for, inequalities between women and men that result in the subordination of women to men. The gender justice approach pursues gender equality with an emphasis on transforming unequal power relations between the sexes.
63 Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in any area and at all levels. The ultimate goal of gender mainstreaming is to achieve gender equality. Gender mainstreaming is a strategy for making the concerns and experiences of women as well as of men an integral part of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres, so that women and men benefit equally and inequality is not perpetuated. ECOSOC: Agreed Conclusions, e/1997/L.30.
40 I. Equality and non-discrimination: Key concepts
Priorities include advancing women’s rights and access to resources on an equal footing with men; building women’s voice and “agency”, that is, ability to make choices; creating women’s access and influence in policy and decision-making institutions and making social, economic and political institutions responsive and accountable to women.
Sources: ILO: Women workers’ rights: Modular training package (Geneva, 1995); ILO: Gender equality mainstreaming strategies in decent work promotion: Programming tools – GEMS Toolkit (Bangkok, 2010); M. Mukhopadhyay and N. Singh (eds.): “Gender justice, citizenship and development” (2007) in ILO: Women in labour markets: Measuring progress and identifying challenges (Geneva, 2010). For more information, see also the United Nations International Development Research Institute, Ottawa, Canada; and the Institute for Development Studies and the University of Sussex, UK.
Changing approaches towards disability: From charity to inclusive workplaces
Over the past 40 years, there have also been significant changes in the approaches towards disability: from the charity and medical approaches towards a rights-based approach which prioritizes the abilities, diversity and rights of persons with disabilities.
The “charity” approach to disability The charity model looked down upon and pitied persons with disabilities (and sometimes also their family). Within this model, the employment of persons with disabilities was considered as a tokenistic, benevolent and charitable act, rather than as a valuable component of workplace productivity and efficiency. Many persons with a disability and their organizations have criticized this model as it promoted a negative, disempowered image of persons with disabilities rather than portraying the abilities of these persons and their right to decent employment.
The “medical” approach to disability The medical model of disability viewed disability as the result of an impairment that is intrinsic to the individual. It classified conditions and disabilities based on medical understandings of the body and mind, and prioritized curing or controlling these conditions within the individual. In the medical model, the focus was on ‘fixing’ the impairment through medical and vocational rehabilitation, rather than optimizing the individual’s capacity to manage her/his own life, given her/his impairment or medical condition.
The “social and human rights-based” approach to disability The social model of disability views disability as the result of the dynamics between individuals with an impairment and a non-inclusive society. It asserts that what constitutes a disadvantage for women and men with disabilities is not their impairments in and of itself, but rather the limitations that are imposed on them by social, cultural, economic and environmental barriers. The social model puts the focus on the removal of disabling barriers through improving access to the built environment and information and removing discrimination, stigma and negative attitudes. The aim is to enable persons with disabilities to take part in mainstream society, access regular education and training programmes, find decent work and make a valuable contribution to workplace productivity and efficiency.
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3.2.2 Design and implementation of affirmative action
As mentioned earlier, an outright ban on discrimination is not sufficient in and of itself to eliminate discrimination in practice. Affirmative action is, therefore, an important strategy to accelerate the pace of improvement of the situation of groups that are at a disadvantage because of past or present discrimination, and, as such, constitutes an important part of a national equality policy. & See Section 2.5.3 above for a description of what affirmative action is.
The necessity for, and legitimacy of affirmative action is sometimes controversial. Supporters argue that affirmative action aims to redress a situation of severe disadvantage and puts everyone on an equal footing. Detractors, however, consider that affirmative action constitutes a form of reverse discrimination against the excluded dominant group and an obstacle to rewarding merit. It is, therefore, important to pay adequate attention to both the content of affirmative action and to engage in a broad consultative process to obtain commitment and buy-in of all concerned stakeholders. Otherwise, what is intended as an effective measure to correct long-standing and deep-seated discrimination against certain groups may actually backfire and perpetuate negative perceptions. It is equally important to keep reminding all parties that affirmative action should not be a permanent policy. Once the target groups are in a position to exercise their rights to equality in practice the targets, quota or other preferential treatment should no longer be needed and should be phased out.
Key components of effective affirmative action
• Reliable evidence to determine the extent and nature of the problem. • Specific objectives concerning the group(s) targeted by the programme. • Specific measures to redress the causes of the discrimination noted. • A timetable to attain the objectives set and apply the measures. • A mechanism to monitor progress, assess difficulties and make adjustments.
Source: ILO: Women workers’ rights: Modular training package (Geneva, 1995); ILO: Equality in employment and occupation, General survey (Geneva, 1988).
Issues to consider when adopting affirmative policies are as follows:
Striking a fine balance between considerations of merit and affirmative action. Merit is an essential consideration in employment decisions. Merit is the primary criterion for recruitment and promotion in societies where all persons have had equal chances to education and training, and employment discrimination does not exist. However, employers need to understand the long-term economic and social benefits of eliminating pronounced inequalities in the workplace and society and this cannot be achieved without businesses investing in short-term positive measures related to their human resources policies.
This does not mean that all merit considerations are waived in affirmative action policies and measures. On the contrary, if merit is entirely excluded from decisions related to employment or occupation, even deserving members of the preferred group or “majority” will continue to suffer from perceptions that their status is purely earned on the basis of their membership of the group.
42 I. Equality and non-discrimination: Key concepts
Merit considerations can be addressed in affirmative action by focusing on special education and training programmes for the disadvantaged or under-represented group(s) because the desired skills and competencies are sometimes scarce among them, exactly because they were discriminated and did not have equal access to education and training. Especially in cases where (it is claimed that) it is not possible to fulfill recruitment quota’s or targets, special investment in education and training measures is an essential component of an affirmative action programme.
Understanding and communicating the rationale and purpose of affirmative action. The rationale and purpose of affirmative action need to be clearly and widely communicated in society and workplaces to overcome any possible resistance among the dominant group. For example, there is a wide belief among dominant ethnic groups in many countries that preferential treatment of ethnic minorities discriminates against the majority group. Men and sometimes women may have similar feelings when affirmative action targets women. Often, such views are not based on hard facts showing, for example, high poverty levels among ethnic groups or women’s under-representation at senior levels. It is, therefore, vital to underpin the rationale for affirmative action with sound evidence on the nature and extent of the disadvantage. The purpose of preferential treatment needs to be set out clearly: It is not to give members of a certain group permanent privileges, but to promote social inclusion and cohesion by temporarily giving them opportunities to reach a level where they can compete on merit with members of the non-preferred groups.
Ensuring the effectiveness of specific affirmative policies and measures. When implementing affirmative policies it is important to ensure that the measures do not backfire and further disadvantage the entitled groups. For example, in China, instead of implementing preferential employment policies for ethnic minorities in limited geographical areas from which these minorities originate, affirmative action measures may promote equality more effectively if privileges target the consistent acquisition of knowledge and skills that are both recognized and “marketable” within the country’s labour market as a whole.
Establishing effective enforcement mechanisms. When designing affirmative policies, legislators need to consider whether the objectives will be achieved most successfully through voluntary or compulsory means as this will impact on the nature of measures developed. In some countries, governments consider voluntary affirmative action policies as a promotional tool for employers who choose to give preferential treatment to persons from the disadvantaged group at the workplace. Such legislation that makes affirmative action possible but not compulsory can protect employers against claims from persons not covered by the affirmative action programmes who may feel they have been wrongly treated. On the other hand, if voluntary measures have proven unsuccessful, affirmative measures may need to become compulsory. This requires establishing clear sanctions, reporting requirements for employers and effective mechanisms for monitoring of implementation, as well as providing individuals with the right to seek redress through the judicial system to ensure enforcement of employers’ affirmative action obligations.
Affirmative action financing. It is important to ensure that all relevant stakeholders invest in affirmative action with contribution from both the public and private sector through public- private partnerships. In certain cases it may be justified to expect either the government or companies to shoulder the financial cost entirely. However, if companies are individually liable to foot the entire bill for affirmative action or reasonable accommodation without any practical support or guidance, the result may not lead to more and better jobs for the under-represented group, but, on the contrary, to even more employment discrimination against them.
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Affirmative action is often promoted and enforced through a mix of incentives and deterrents. One way to finance affirmative measures is to impose a levy or fine on employers who fail to meet the set quota levels. Several countries, including Cambodia, use this kind of measures to promote employment of persons with disabilities and oblige employers to employ a certain percentage of these workers. The levies and fines are paid into a central fund, which is sometimes earmarked for promoting the accessibility of workplaces to persons with disabilities or for vocational rehabilitation purposes. Countries with this type of legislation include many European countries, such as France, Germany and Italy, and several Asian countries, such as Cambodia, China, Japan, and Thailand. Most quota laws make no provision for training of people with disabilities, with the exception of the quota law in France.64
However, in Asia the application of these systems is often fraught with difficulties. The levies in place are often regarded as not high enough, since employers in many countries opt to pay the levy rather than employ persons with disabilities. In many countries enforcement of the quota system is also rather lax. Taking into account the need to improve the effectiveness of quotas in promoting employment for persons with disabilities, some countries have introduced reforms that focus on the removal of barriers in the workplace, and offer a wider range of options for employers, including the option of providing on-the-job training like apprenticeships.65
3.2.3 Legislation
To eliminate discrimination, there is a need for comprehensive legal coverage and protection. Often broad equality and non-discrimination principles are laid down in countries’ constitutions. Courts, however, have difficulty applying principles or laws that do not define what is meant by discrimination. Specific legal provisions need to be formulated to provide definitions of discrimination and to identify the specific grounds of discrimination and situations to which the law applies.
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the UN treaty bodies have repeatedly noted that national legislation in many East and South-East Asian countries does not include a clear definition of discrimination. Its absence is noted in the national legislation of, among others, Cambodia, China, Indonesia, Lao PDR, Malaysia, Singapore and Thailand. The CEACR and the UN treaty bodies have urged the governments to include a clear definition of discrimination encompassing both direct and indirect discrimination in their national laws. The definition should cover all grounds and all aspects of discrimination in employment and occupation as contemplated by Article 1 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).66
64 ILO: Achieving equal employment opportunities for people with disabilities through legislation. Guidelines (Geneva, 2007); ILO: From disability benefits to gainful employment: Central and Eastern Europe sub-regional conference report (Budapest, 2005). 65 ILO: Achieving equal employment opportunities for people with disabilities through legislation. Guidelines (Geneva, 2007); ILO: From disability benefits to gainful employment: Central and Eastern Europe sub-regional conference report (Budapest, 2005). 66 ILO: “Individual observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Indonesia” in Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2008); ILO Committee of Experts on the Application of Conventions and Recommendations: “Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to China” (Geneva, 2009); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006), China (2006), Indonesia (2007), Lao PDR (2005), Malaysia (2006), Singapore (2007) and Thailand (2006) (Geneva); CERD: Concluding comments of the Committee on the Elimination of Racial Discrimination Cambodia (2010), China (2001) and Lao PDR (2005) (Geneva).
44 I. Equality and non-discrimination: Key concepts
Types of instruments that may contain specific provisions against discrimination
• Constitution. • Generic legislation protecting human rights (e.g. National Human Rights Commission Act). • Generic legislation outlawing discrimination on all prohibited grounds (e.g. Equal Opportunities Act) or selected prohibited grounds (e.g. Gender Equality Act, Protection of persons with disabilities Act, Equal Pay Act, etc.). • Generic Labour Laws (e.g. Labour Law, Labour Code). • Specific Labour Laws (e.g. Labour Contracts Act, Employment Relations Act). • Executive regulations, directives, guidelines. • Judicial decisions. • Administrative decisions. • Collective bargaining agreements (to the extent national law considers them legally binding).
Essential elements in legislation
• Definition of prohibited discrimination: Direct, indirect and harassment. • Explanation of exemptions to what is prohibited discrimination. • List of grounds of prohibited discrimination – normally expanding with time. • Scope of protection: employment and occupation at all stages of the employment cycle. • Designation of supervisory responsibilities to competent national authorities such as labour inspection services. • Affirmative action, protective measures and reasonable accommodation. • Employer liability and responsibility. • Sanctions and remedies. • Protection against reprisal and victimization. • Shifting or reversing the burden of proof. • Adoption and implementation of equality policies or plans at the workplace. • Collection of relevant information and statistical data at different levels.
To make discrimination prohibitions laid out in the Constitution and national legislation efficient, it is important to ensure that enforcement and promotion mechanisms to redress discriminatory employment practices are put in place. Therefore, real commitment to combat employment discrimination requires establishing clear liabilities and access to legal remedies.
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Box 6. Repealing discriminatory laws in East and South-East Asia
One of the first steps that a member State should take after ratification of Discrimination (Employment and Occupation) Convention, 1958 (No. 111) is to repeal any discriminatory provisions in its national laws or administrative regulations (Art. 3(c)). While many Asian countries have already taken the initiative to align their laws and administrative practices with the Convention, discriminatory provisions can still be found in national and regional legislation in many countries. One type of discriminatory provisions still in force in many Asian countries is blanket bans prohibiting employment of women in certain jobs. These provisions are usually adopted with the intention to protect women, but they have the effect of limiting women’s access to and free choice of employment. & See Section 2.5.3 Protective measures.
The ILO CEACR and the UN Committee on Elimination of Discrimination against Women (CEDAW) have noted that protective provisions continue to limit women’s choice of employment in some East and South-East Asian countries. In its recent comments concerning application of Convention No. 111 in Viet Nam and China the CEACR requested the respective governments to provide a list of occupations from which women are barred, any reasons and justifications for such prohibitions, and information on any revisions of these provisions. The CEDAW has also noted that restrictions on women’s employment and protective legislation, policies and benefits for women in Malaysia perpetuate traditional stereotypes regarding women’s roles and responsibilities, which may undermine efforts to promote gender equality in the society and labour market.
Sources: ILO: “Individual observation on Convention No. 111 with respect to Viet Nam” in Report of the Committee of Experts on the Application of Conventions and Recommendations(Geneva, 2010); ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to China (Geneva, 2010); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Malaysia (Geneva, 2006).
3.3. Access to justice and legal protection
Access to legal protection refers to being able to use the law through formal and informal complaint mechanisms. These may range from grievance procedures at company level to filing formal complaints with labour and/or civil courts. In many countries and jurisdictions mediation and arbitration procedures and mechanisms are available to protect against discriminatory employment practices.
3.3.1 Judicial enforcement and other forms of dispute settlement
Adjudicating discrimination claims through court proceedings or arbitration is a widely used method of enforcement. Since its establishment in 2003, the Arbitration Council of the Kingdom of Cambodia has assessed many cases related to discrimination, primarily on the grounds on membership in workers’ union or the exercise of union activities. The advantages and disadvantages of enforcement through the court or arbitration are as follows.
Advantages: • It clarifies the meaning of discrimination in different specific situations. • The procedure is transparent, which enhances the credibility, visibility and legal character of the legal provisions. • It has the power to correct an imbalance by compensating the usually weaker party for any damage incurred as the result of discrimination.
46 I. Equality and non-discrimination: Key concepts
Disadvantages: • Access to judicial procedures can be costly and technically difficult, in particular for victims of disadvantaged groups. Public interest litigation, that is, cases brought before the courts that result in judgments which may serve the public interest may partially address this problem. • The regular court system is often overloaded, leading to delays that disadvantage the weaker party in particular. • Regular judges deal with a wide range of issues and often lack insider knowledge and understanding of workplace environments. • The adjudication process determines right and wrong, complicating reconciliation of the parties. • The facts of some discrimination cases, such as sexual harassment, call for discretion, which is often ill-served by formal and transparent court procedures.
To overcome these disadvantages, many countries establish alternative dispute settlement procedures that are often administered by specialized mediation or arbitration bodies.
Box 7. Arbitration Council orders reinstatement after discriminatory dismissal - Cambodia
On 24 March 2004, a hotel located in Daun Penh district of Phnom Penh, which employs around 200 workers dismissed Mr Sok Thol, a senior security supervisor, for prior misconducts. On the following day three other workers, head chef Mr Oul Sereivathana, electrician Mr Kram Sokheng and head of security Mr Eng Kimhun were also dismissed on same grounds. All four workers were trade union activists. The four workers brought the case to conciliation before the labour inspector and, after the conciliation failed, to the Arbitration Council claiming that they had actually been dismissed on the grounds of membership of workers’ union or the exercise of union activities.
The employer claimed that it did not know that Mr Sok Thol’s was the president of the union until the day after the dismissal, and that he was dismissed following breaches of the Internal Work Rules of the hotel. Mr Sok Thol alleged that the employer was aware of his union membership, and that in fact two days before his dismissal he had been called for a meeting where the management of the company had asked him to resign from the union. The Arbitration Council checked the evidence provided by the two parties and noted that the misconduct described in the employer’s report occurred a very long time ago. In these circumstances the Arbitration Council found that the employer actually dismissed Mr Sok Thol for anti-union reasons, which was against Articles 12 and 279 of the Cambodian Labour Law. Accordingly, the Arbitration Council decided that the hotel must reinstate Mr Sok Thol to his prior position and pay his wages from 24 March 2004 onwards.
The Arbitration Council also found that the dismissal of Mr Sokheng, Mr Kimhung and Mr Sereivathana was based on their participation in union activities. The employer representative did not provide any evidence of acts of serious misconduct by these workers. On the other hand, the employer must have know about their union activism, because all three workers had their names down as candidates for the union leadership positions in the list that Mr Sok Thol had submitted to the employer on 25 March 2004. The Arbitration Council ordered the hotel to reinstate Mr Sokheng, Mr Kimhung and Mr Sereivathana to their previous positions with payment of wages from 25 March 2004. As the three workers had received severance pay from the employer on 25 April, the Arbitration Council ordered them to pay the severance pay back to the employer.
Source: Arbitration Council of the Kingdom of Cambodia: Arbitral Award 41/04-MiCasa.
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3.3.2 Burden of proof
Legal systems will commonly place the burden of proof on the party initiating the complaint. The complainant in a lawsuit will then have to substantiate the allegations to a particular level of certainty, producing facts, documents, testimonies, etc. that support the claim. This is recognized as a major stumbling block to enforcement in discrimination cases, because differential treatment can often be explained by illegitimate discriminatory behaviour as well as by legitimate reasons deriving from the “inherent requirements of the job”. Attempts to overcome this stumbling block have triggered a trend towards a reversal of the burden in discrimination cases.
This trend towards shifting or reversing the burden of proof to the employer is based on the fact that the employer is usually the one in possession of all the documentation or other evidence concerning the taking of employment decisions. Shifting the burden of proof means that once the alleged victim of discrimination has provided evidence of differential treatment that might or might not result from discriminatory behaviour (in legal jargon: has established a “prima facie” case), the employer has the burden of proving his or her actions were not discriminatory, but inspired by objective reasons.
Reversing the burden of proof may also help address unvoiced and often unconscious prejudice in society which makes courts reluctant to draw favourable inferences from evidence which supports a claimant's position. This has, for example, raised problems in sexual harassment cases. Placing the burden of proof on the employer also takes into account that there is a general lack of understanding of the concept and practice of indirect discrimination, particularly in cases of equal pay.
The Cambodian Arbitration Council has established in several cases that the burden of proof on establishing discrimination in its hearings is on the worker. The employer’s side is however asked to provide countervailing evidence to rebut the workers’ claims.67 In Cambodia, as in many other Asian countries, the absence of rules on the shifting the burden of proof in discrimination cases has become a major stumbling block to enforcement.
3.3.3 Labour inspection services
A functioning labour inspection system is essential for good governance in the world of work. Labour inspectors can play a key role in enforcement of anti-discrimination provisions because of their regular contacts with employers and workers, their access to relevant files, and because they can investigate cases without the need to wait for an individual victim to bring a case. However, the capacity of the labour inspectorate to promote equality and enforce non-discrimination is underutilized in many countries. To be able to take effective action, the capacity of inspectors to identify discrimination needs to be strengthened and clear mandates to enforce non-discrimination need to be set in the law. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has asked the Government of Cambodia to include the issue of sexual harassment and discrimination more explicitly in the terms of reference for labour inspectors.68
67 See for example, Arbitration Council of Kingdom of Cambodia: Arbitral Awards 90/06-Evergreen, 112/06-River Rich, 01/07-Supreme, 75/07-GDM, 123/07-E Garment and 137/07-MPA Security. 68 ILO Committee of Experts on Application of Conventions and Recommendations: Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2012).
48 I. Equality and non-discrimination: Key concepts
Box 8. Capacity building of labour inspectors – Czech Republic
The monitoring of compliance with the laws on discrimination and equal remuneration is generally the responsibility of the labour inspectorate. However, the capacity of labour inspectors to check compliance with equality and equal pay principles is in many cases limited, partly due to a lack of understanding of what ensuring equality and non-discrimination, and equal pay for equal work and work of equal value entails.
However, examples from some countries show that the labour inspectorate can play an important role in doing so if adequate capacity building measures are taken. In the Czech Republic for instance, the Ministry of Labour has developed “Methodological instructions for the inspection of compliance with equal opportunities for men and women”. The instructions, which entered into force in January 2003, contain the relevant legal provisions with regard to equal remuneration and equal treatment in the workplace (including matters relating to recruitment, training and promotion, working conditions, sexual harassment, and maternity and parental leave). They also give guidance on how gender equality inspections should be carried out, and provide a list of questions to be asked during the inspections.
Source: Czech Republic, Ministry of Labour and Social Affairs: Methodological instructions for the inspection of compliance with equal opportunities for men and women (Prague, 2003).
3.3.4 Specialized agencies
Many countries have established enforcement agencies with powers to examine complaints of discrimination and monitor implementation of anti-discrimination measures. These agencies can facilitate the filing and resolution of individual complaints and, in many jurisdictions, initiate action on their own to support individual victims. The specialized expertise of equal opportunities commissions has been found crucial particularly in solving pay equity, sexual harassment and other serious discrimination cases.
Specialized institutions to address discrimination and equality matters have been emerging in regions across the globe reflecting a trend of supporting the application of laws against discrimination by promoting equality through practical, institutional measures. An equality commission or equal opportunities commission is an effective mechanism for eliminating discrimination and safeguarding equality, provided it is given the mandate and resources to function as an independent, authoritative body, financed by public funds. An equality or equal opportunities commission usually has the following mandates: • Policy direction and implementation. • Promotion, awareness raising and training. • Investigation. • Complaint resolution.
So far only a few equality commissions have been established in the East and South-East Asian region. The Equal Opportunities Commission in Hong Kong, China is a good example (see the box below). Another good example of a specialized agency is the National Human Rights Commission of Korea (NHRCK). Established in 2001, the NHRCK provides for investigation and remedies for discrimination based on 18 different grounds. By 2005 it had dealt with 370 cases, most of which concerned discrimination in public employment based on age, sex, disability or social status.69
69 ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Republic of Korea (Geneva, 2006, 2008); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Republic of Korea (Geneva, 2007)
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Box 9. The Equal Opportunities Commission (EOC) – Hong Kong, China
The Equal Opportunities Commission (EOC) was established in 1996 as an independent body funded by the Government to implement equality legislation and combat discrimination on the grounds of sex, family status, disability and most recently race. Anti-discrimination legislation in Hong Kong includes the Sex Discrimination Ordinance (SDO), the Family Status Discrimination Ordinance (FSDO), the Disability Discrimination Ordinance (DDO) and the Race Discrimination Ordinance (RDO).
The EOC has investigation and conciliation powers; issues codes of practice and guidelines on equal opportunities; produces research on discrimination; and builds partnerships with enterprises and governmental and non-governmental organizations alike. A major achievement of the Commission has been the reform of the Secondary School Places Allocation (SSPA) system that for a quarter of a century had led to the systematic lowering of the best girls’ scores and scaling up of the best boys’ scores, and gender quotas that restricted girls’ access to the best schools arbitrarily.
In the field of employment, the SDO protects all workers, including part-time and temporary workers as well as job applicants who are not yet employed. Unlawful acts under the SDO and FSDO include: direct and indirect discrimination on the grounds of sex, pregnancy, marital status, family status, sexual harassment and victimization. There are no specific provisions on equal pay for equal value, but the SDO does prohibit discrimination in pay levels, and can be used for equal pay for work of equal value cases.
Redress mechanisms include facilitating internal company procedures, taking a complaint to the EOC and/or instituting legal proceedings, including grants for legal assistance. When a complaint is taken to the EOC, the Commission starts with investigation, and then moves to conciliation where deemed appropriate. Most complaints under both the SDO and the FSDO relate to employment, in particular pregnancy discrimination and sexual harassment. The success rate of conciliation is relatively high – for instance, conciliation was successful in 71 per cent of sex discrimination cases between 1996 and 2008.
Source: Equal Opportunities Commission, Hong Kong, China, http://www.eoc.org.hk (accessed 15 Sep. 2010); C. Petersen: “Implementing equal pay for work of equal value in Hong Kong: A feminist perspective,” in Equal Opportunities Commission, Hong Kong SAR China: Proceedings: Equal pay for work of equal value (2000).
3.3.5 Employment services
Employment services are a vital component of an active labour market policy. They match persons who are looking for work with persons or companies who are offering work through practical measures. As mentioned earlier, the use of intermediaries in recruitment such as public or private employment services is prone to discriminatory practices that must be outlawed.
The Private Employment Agencies Convention, 1997 (No. 181) explicitly prohibits discrimination in employment: “In order to promote equality of opportunity and treatment in access to employment and to particular occupations, a Member shall ensure that private employment agencies treat workers without discrimination on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, or any other form of discrimination covered by national law and practice, such as age or disability”. (Article 5.)
50 I. Equality and non-discrimination: Key concepts
3.4. Practical measures
3.4.1 Research on equality and discrimination
As mentioned earlier, many forms of indirect discrimination remain hidden, and as a result, discriminatory practices may abound, even if employment discrimination is outlawed. Research and statistics on labour market indicators can provide evidence of labour market outcomes for groups who may be subject to employment discrimination, and, thereby, provide the “proof” of the negative effects of indirect discrimination on specific groups. It is important to collect and analyze statistical labour force data disaggregated by the relevant grounds of discrimination and disseminate these through various channels, such as the academic literature, statistical yearbooks and databases, journals and other media.
In addition to creating evidence on hidden forms of discrimination, statistical data is also needed to measure impacts of the national equality policy. The effects of policy measures on labour market outcomes for different groups of workers need to be regularly monitored to assess effectiveness of the policy. For this purpose it is important to collect labour market data disaggregated by sex, ethnicity and any other relevant factors, such as disability.
ILO member States have the obligation to report regularly to the ILO on the measures taken to promote equality and non-discrimination in employment and to indicate the results secured by such action. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) regularly calls on States to provide facts on the impact of measures on actual labour market outcomes. The Government of Cambodia has been recently requested to provide statistical data, among others, on distribution of men and women in the different sectors of economic activity, occupational categories and positions and participation of members of ethnic minorities in vocational training courses.70
3.4.2 Information, education and communication
Advocacy measures and information campaigns, such as advertizing, broadcasting, “special days,” conferences, or “labour inspection campaigns” are necessary to raise awareness and localize understanding on discrimination among the public at large and increase societal acceptance for prohibiting it.
Information should also be provided to the agencies which have specific responsibilities in combating employment discrimination, including government, workers and employers and their organizations, mass organizations, NGOs and CBOs and associations or networks of groups which face employment discrimination, lawyers, legal education and aid centres, the judiciary, the labour inspectorate, etc.
The underlying reason for discrimination in employment and occupation is often traditional ideas about the roles of different people in the society (e.g. women, men, ethnic groups) or inaccurate stereotypes about the abilities of certain persons (e.g. persons with disabilities or health conditions). Elimination of discrimination and achievement of substantive equality requires changing mindsets and overcoming stereotypical ideas about abilities and roles of different groups of persons in the society and the labour market. For this purpose the UN Committee on the Elimination of Discrimination against Women (CEDAW) and the UN Committee on Economic, Social and Cultural Rights (CESCR) have repeatedly urged the
70 ILO Committee of Experts on the Application of Conventions and Recommendations: Individual direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (2010).
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governments in the East and South-East Asian region, including Cambodia, to design and implement effective awareness-raising and public education programmes on issues of equality and non-discrimination among public officials, civil society and the entire population.71
3.4.3 Guidelines and codes of practice
Understanding forms of direct and indirect discrimination in a particular context can be complex in the first instance. Legislation often prohibits discrimination without providing much further detail, and, importantly, without providing practical guidance as to how to prevent or address it in workplace situations.
Guidelines and codes of practice, often developed by international or national expert committees and independent public commissions with a specific mandate meet the need for authoritative expert guidance that does not come in the form of legally binding obligations.
Box 10. Codes of practice on non-discrimination and equality promotion at work – Hong Kong, China
Hong Kong, China has been gradually expanding its legal framework outlawing discrimination and promoting equality of opportunity and treatment. To date it has adopted a Sex Discrimination Ordinance, a Family Status Ordinance, a Disability Discrimination Ordinance and a Race Discrimination Ordinance. For each of the Ordinances, the Equal Opportunities Commission (EOC) has issued a Code of Practice on employment.
The Code of Practice issued under the Race Discrimination Ordinance (2009), for example, indicates that it is a statutory code that has been laid before the Legislative Council, that it provides recommendations for good employment procedures and practices; and that, although the Code is not law, it shall be admissible in evidence and the court shall take into account relevant parts of the Code in determining any question arising from proceedings under the Ordinance. If, for example, an employer has followed the Code’s recommendations on taking reasonably practical steps to prevent discrimination and harassment, it may help the employer to show that it has complied with the law.
Sources: Equal Opportunities Commission Hong Kong, China website: http://www.eoc.org.uk.
Box 11. Malaysian Code of Practice on sexual harassment
The Malaysian Ministry of Human Resources established a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999. Intended for implementation on a voluntary basis, the Code serves as a guideline for employers for the establishment of an internal mechanism to handle problems of sexual harassment at the workplace. The Code also acts as a guideline to employees, trade unions and other relevant parties for the protection of the dignity of men and women at work.
The Code encourages the setting up of an in-house mechanism by employers, which should be strengthened by a policy statement prohibiting sexual harassment in the organization. The Code also urges organizations to adopt a clear definition of sexual harassment, a complaint/grievance
71 See for example CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: China (2006), Indonesia (2007) and Lao PDR (2005) (Geneva); CESCR: Concluding comments of the Committee on Economic, Social and Cultural Rights: Cambodia (2009) and China (2005) (Geneva).
52 I. Equality and non-discrimination: Key concepts
procedure, disciplinary rules and penalties against the harasser and against persons making false accusations, protective and remedial measures for victims and promotional and educational programmes to explain the company’s policy on sexual harassment and to raise awareness among employees, supervisors and managers of sexual harassment and its adverse consequences.
In January 2012, a definition of sexual harassment was included in the Malaysian Employment Act. The amended Employment Act prescribes also a procedure for inquiring into complaints of sexual harassment. Complaints of sexual harassment shall primarily be inquired into by the employer and, if needed, may also be referred to the Director General of Labour.
Source: ILO: Employers organizations taking the lead on gender equality: Case studies from 10 countries (Geneva, 2005); Employment (Amendment) Act 2012.
3.5. Role of social partners and strategic alliances
3.5.1 Employers and their organizations
In a market economy context where most employment takes place in the private sector, employers’ organizations are in a key position to promote equality in their member companies. Employers’ organizations play a role in providing information and advice to their member companies on non-discriminatory human resources management practices. Employers’ organizations can also deliver training and other programmes to build capacity among their members.
Individual employers have a legal obligation to respect diversity of the employee, prevent discrimination and realize equality in the workplace. All recruitment and employment policies and practices (including job advertisements, job descriptions, and performance and job evaluation policies and practices, etc.) shall be free from discrimination. It is a good practice to adopt and implement an equal opportunities policy at company level. Companies should also adopt non-discrimination as a key value of their company culture, and apply it in all their business practices, including provision of goods and services to clients and dealing with suppliers and business partners. Leading companies include non-discrimination in codes of practice, and require their suppliers and subcontractors to adhere to the equality principle.
Practical guidance for employers
In order to avoid discrimination, employers should: ü Review the procedures related to human resource development and management to remove discriminatory clauses. ü Implement practical measures such as training job interviewers in non- discriminatory recruitment procedures and processes; and familiarizing managers and staff with the relevant laws and regulations. ü Adopt an Equal Opportunity Policy to make sure that all employees enjoy equal employment and rights, and make sure that it is implemented. ü Design and implement affirmative action or positive measures to support and assist groups that have been or are prone to encounter discrimination in the enterprise, such as setting recruitment targets for under-represented groups and reasonable accommodation for persons with disabilities.
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3.5.2 Corporate social responsibility
Corporate social responsibility is often identified with the movement of international brand companies and other businesses to voluntarily subject their business practices to internationally recognized standards of rights and ethics. It is a movement that recognizes that the business logic of profit maximization in this age of outsourcing can result in international buyers not following the same high standards of ethical practice everywhere where they operate. Once a company has committed itself to an internationally recognized voluntary code of conduct, such as the Global Compact or SA8000, monitoring for implementation is implied and only certified suppliers can do business with these buyers.
Growing numbers of brand companies are conducting Corporate Social Responsibility (CSR) evaluations and reviews of their global suppliers. CSR requirements are increasingly also added into the terms and conditions of company orders with the result that they have implications for corporate behaviour in developing countries that are used as production bases. Suppliers in developing countries are required to meet such conditions in order to enter into brand company supply chains.
CSR norms can also be tools in the hand of governments, trade unions and other organizations in developing countries where they potentially could be used as leverage in negotiating agreements with international investors to better protect local workers’ rights. The global CSR standards and codes of conduct usually contain clauses on non-discrimination and diversity in the workplace. Complying with these standards means a company must integrate these considerations into its daily business operation.72
3.5.3 Workers’ organizations
Trade unions play an important role in training their members about their right to equality and supporting individual members in resolving discrimination-related problems with their employers. Trade unions can also undertake advocacy campaigns to increase discrimination awareness among their members and the general public.
The fundamental role of workers’ organizations is to represent workers so that they can better defend and further their work-related interests. Key functions include: • Organizing workers without distinction as to race, colour, sex, national extraction, social origin, religion or political opinion. • Strengthening national and international solidarity among workers. • Raising awareness of social justice issues such as equality of opportunity and treatment. • Forging alliances with the community. • Giving a voice to workers, who face discrimination. • Collective bargaining with employers to determine terms and conditions of employment.
Workers’ organizations can specifically contribute to the promotion of equality of opportunity and treatment in the following ways: • Negotiating wages and benefits that follow the principle of equal remuneration for work of equal value. • Negotiating flexible working time arrangements in terms of hours of work and leave that permit a balance between work and family responsibilities.
72 See the bibliography for websites on corporate social responsibility.
54 I. Equality and non-discrimination: Key concepts
• Negotiating occupational safety and health arrangements that take account of the needs of workers with disabilities; protect reproductive health and rights; disseminate information on HIV and AIDS, etc. • Negotiating improved maternity leave and benefits, and protection from dismissal. • Defending the rights of non-permanent (fixed-term, flexible, casual, temporary, seasonal etc.) workers who are vulnerable because they are not covered by labour legislation (e.g. workers in domestic service, migrant workers in many occupations) by organizing and including them in workers’ organizations as members and leaders, and representing them in collective bargaining and judicial procedures. • Defending respect and dignity at the workplace, for example by promoting in-house policies, procedures and practices to address sexual harassment or violence at the workplace.
Box 12. Model Equal Opportunities Clause of the UK Trade Union Congress
"The parties to this agreement are committed to the development of positive policies to promote equal opportunities in employment regardless of workers' sex, marital status, sexual orientation, creed, colour, race, ethnic origins or disability. This principle will apply in respect of all conditions of work including pay, hours of work, holiday entitlement, overtime and shift work, work allocation, guaranteed earnings, sick pay, pensions, retirement, training, promotion and redundancy.
The management undertakes to draw opportunities for training and promotion to the attention of all eligible employees, and to inform all employees of this agreement on equal opportunities. The parties agree that they will revise from time to time, through their joint machinery, the operation of this equal opportunities policy. If any employee considers that he or she is suffering from unequal treatment on the grounds of sex, marital status, sexual orientation, creed, colour, race, ethnic origin or disability, he or she may take a complaint which will be dealt with through the agreed procedures for dealing with such grievances."
Source: Trade Union Congress UK: Working women, A TUC handbook for all trade unionists (London).
3.5.4 Collective bargaining
Trade unions and employers’ organizations should include equality in their collective bargaining agendas at different levels. Special clauses on equality and reconciling work and family in collective agreements are an effective way for promoting and securing equality in workplaces.
The democratic structures of trade unions and their mandate to promote and protect workers' rights make unions important vanguards in the fight against discrimination at the workplace, community, national, regional and international levels. Through collective bargaining trade unions have a critical role to play in negotiating with employers and secure better protection for workers who are discriminated.
3.5.5 Tripartite action
National tripartite mechanisms should be mobilized to promote equality at work. In several countries, the labour ministry and employers’ and workers’ organizations have jointly adopted tripartite declarations and codes of practice against discrimination in employment.
Employers’ organizations and trade unions should engage in dialogue with the government and other relevant actors, such as women’s organizations, on the adoption and implementation of a national policy and identification of further measures that are needed to realize substantive equality for women and men in employment and occupation.
55 Equality and non-discrimination at work in Cambodia: Manual
Box 13. Good practice – Tripartite cooperation mechanism – Singapore
A Tripartite Declaration on Equal Remuneration for Men and Women Performing Work of Equal Value was issued in November 2002 by the Ministry of Manpower, the National Trades Union Congress and the Singapore National Employers Federation, affirming their commitment to the principle. In addition, to ensure application in practice, employers and trade unions were to include an ”equal remuneration clause” in their collective agreements when the agreements came up for renewal. A Code of responsible employment practices was also issued by the Singapore Business Federation, the Singapore National Employers Federation and the National Trades Union Congress in December 2002.
The 2002 Code was replaced in May 2007 by the Guidelines on fair employment practices adopted by the Tripartite Alliance for Fair Employment Practices (TAFEP). The alliance, composed of representatives from government, the private sector and the unions, was formed in May 2006 with a view to root out discrimination in hiring and employment.
The Guidelines cover areas such as recruitment, equal remuneration for work of equal value, job appraisal, promotion, training, dismissals, and grievance handling. Among other recommendations, the Guidelines state: • The selection of employees and the recruitment procedure should be based on merit and be free from discrimination based on age, race, sex, religion, and family status. Whenever the practical requirements of a job mean employees of a particular sex are needed, this must be supported by an acceptable rationale. • Remuneration should be based on the value of the job and the performance, contribution and experience of the jobholder, regardless of their age, race, sex, religion, and family status. • Employers should adopt formal appraisal systems which are fair and objective, with measurable standards for evaluating job performance to ensure that employees are assessed and promoted on the basis of merit.
In November 2007, the Tripartite Centre for Fair Employment was launched as a one-stop centre where workers and employers can provide feedback and seek advice on fair employment practices.
Source: Singapore Ministry of Manpower, http://www.mom.gov.sg (accessed 15 Sep. 2010); Tripartite Alliance for Fair Employment Practices (TAFEP),http://www.fairemployment.sg/ (accessed 15 Sep. 2010).
3.5.6 Mechanisms for consultation of indigenous and tribal peoples
The establishment of appropriate and effective mechanisms for the consultation of indigenous and tribal peoples regarding matters that concern them is the cornerstone of the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169). The establishment of processes of consultation is an essential means of ensuring effective indigenous peoples’ participation in decision-making.73
The Convention requires member States to ensure that indigenous and tribal peoples have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use. They shall also have the right to exercise control over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. (Article 7(1).)
73 ILO: Indigenous and tribal people’s rights in practice: A guide to ILO Convention No. 169 (Geneva, 2009).
56 I. Equality and non-discrimination: Key concepts
Box 14. Institutional mechanisms to protect indigenous peoples’ rights – The Philippines
In the Philippines, indigenous peoples represent approximately 15-20 per cent of the total population. The legal framework for the protection of their rights is provided by the Indigenous Peoples Rights Act (IPRA) of 1997.
The National Commission on Indigenous Peoples The National Commission on Indigenous Peoples (NCIP) was established pursuant to the IPRA as an independent agency under the Office of the President. NCIP is “the primary government agency responsible for the formulation and implementation of policies, plans and programs to promote and protect the rights and well-being of the Indigenous Cultural Communities/Indigenous Peoples (ICC/IPs) and the recognition of their ancestral domains” (IPRA, section 38). The NCIP is composed of seven Commissioners belonging to ICCs/IPs. The Commissioners are appointed by the President of the Philippines from a list of recommended candidates submitted by indigenous peoples. Additionally, it should be noted that Section 16 of the IPRA stipulates that “the State shall ensure that the ICCs/IPs shall be given mandatory representation in policy making bodies and other local legislative councils”.
The Indigenous Peoples Consultative Body Section 50 of the IPRA provides for the establishment of a Consultative Body consisting of the traditional leaders, elders and representatives from the women and youth sectors of the different indigenous peoples, which will advise the NCIP on matters relating to the problems, aspirations and interests of indigenous peoples. In 2003, the NCIP adopted Guidelines for the constitution and operationalization of the Consultative Body. These Guidelines recognize the constitution of Consultative Bodies at national, regional and provincial levels and, further, at community level when the need arises, to hold more focused consultations (Sec 12). Among other things, the Consultative Body is called to “deliberate on important IP issues and concerns and give inputs or make recommendations of policies for adoption by the Commission”. The Body was established in 2006.
Sources: ILO: Indigenous and tribal peoples’ rights in practice (Geneva, 2009); R. Stavenhagen: Report of the mission to the Philippines, UN Doc. E/CN.4/2003/90/Add.3, 5 March 2003.
57 Equality and non-discrimination at work in Cambodia: Manual Exercise 1
Part II. Exercises
1. Exercises to start a training workshop
Exercise 1. Jigsaw puzzle: Self introduction exercise (Icebreaker)
Instructions for trainers
Aim – To allow participants to introduce themselves and to break the ice at the start of the training.
Time – 30 minutes.
Seating arrangements – Small group seating at round tables with space to stand and walk around the training room.
Training materials and preparation – Prepare two-piece jigsaw puzzles with as many pieces as there are people in the training, including participants, trainers and organizers. For example, if there are 20 participants and two trainers, prepare 22 pieces of jigsaw pieces that will make 11 pictures. Alternatively, pairs of different coloured candies or similar items can be used.
Steps.
Ø Walk around the room with the bag of jigsaws or candies and ask each person to take one piece. When all in the room have a piece, ask everyone to get up and find their “other half” with the matching piece of their jigsaw or candy. If the time does not allow forming the pairs by using the jigsaw puzzle pieces, divide people into pairs by asking them to form a pair with their neighbour.
Ø When the pairs are formed ask them to interview each other and to introduce themselves to one another by giving their name, the organization they represent and/or the province or city they come from. Give the pairs five minutes in total for discussion.
If the training has a specific focus on gender equality promotion, ask participants to imagine themselves in the role of the opposite sex. Ask women to complete the sentence: “If I were a man, I could/would …”; and ask men to complete the sentence: If I were a woman, I could/would …” The outcome of these discussions in the round of introductions will give a good indication of the levels of gender awareness in the group.
Ø After five minutes, ask each participant to briefly introduce his/her partner in plenary.
58 II. Exercises 1. Exercises to start a training workshop Exercise 2
Exercise 2. Inventory of participants’ expectations and contributions
Instructions for trainers
Aim – To find out what participants expect from the training course and what they can contribute.
Target group – All audiences. Useful especially at the start of workshops longer than one day to ensure that the training meets participants’ expectations and to invite participants to contribute to the training.
Time – 10 minutes.
Training materials and preparation – Prepare stickers or pieces of paper in two colours (for example blue and yellow) and a marker pen for each participant.
Steps.
Ø Share the objectives of the exercise with the participants.
Ø Give each participant pieces of paper in two different colours and a marker pen. Tell them that one colour, for example, yellow, stands for expectations and the other colour, for example, blue, stands for contributions. Ask them to write: • Things they hope or expect to achieve during the training on a piece of yellow paper • Things they can contribute or share with others on a piece of blue paper. Their expectations and contributions can relate to content, training process, meeting people or any other aspect of the training.
Ø Ask the participants to write clearly in big letters and be clear and specific. They do not need to write their names on the cards, and trainers may show examples while explaining as needed. Give the participants about five minutes to complete their cards.
Ø The trainers start collecting the cards as soon as they are ready and cluster them by topic on a flipchart, board or wall space. The cards should be left on the wall for the participants and trainers to read during the training workshop. They can be used during the last session to review with participants to what extent the training aims were met.
59 Equality and non-discrimination at work in Cambodia: Manual Exercise 3
2. Exercises to initiate discussion on discrimination
2.1 Exercises to discuss stereotypes
Exercise 3. Be aware of your own bias
Instructions for trainers74
Aim- To recognize that personal biases may lead to discrimination of certain groups.
Time - 20 minutes.
Training materials and preparation – Photocopy the worksheet, one copy for each participant. Fold the worksheets in half to make sure that participants will not start reading before instructed to do so.
Steps.
Ø Tell participants that they will receive a sheet of paper with characterizations of 12 persons, and they will be asked to describe each of these persons. Explain the rules of writing the descriptions on the worksheet: • Write down the first characteristics that come to your mind regarding each person. • Take only five seconds to come up with your response. If you cannot think of anything by then, move on to the next category. • Your first thought can be about a positive or a negative characteristic. • Resist the urge to edit or second-guess your response.
Ø Explain to participants that they should not hesitate when writing the descriptions. They will not be asked to hand in their worksheets or to show their list to anybody. They should also not jump to conclusions about what their responses mean and try to control them.
Ø Hand out the folded worksheets to participants. Make sure nobody is opening the folded paper before you allow them to start. When everybody has received a worksheet, repeat the instructions shortly. Then ask people to open their sheet and START. Give participants maximum five minutes to fill in the whole worksheet.
Ø After participants have finished writing down their answers start a discussion on the exercise: • Point out certain characters in the worksheet, e.g. “a person in a wheelchair” or “a 50-year old man in an expensive business suit,” and ask some volunteers to share how they described these persons, and what jobs are suitable for them. • Ask participants also to comment on each other’s answers. When you get conflicting descriptions on abilities of certain characters, encourage further
74 Adapted from S. Thiederman: Making diversity work: Seven steps for defeating bias in the workplace (Kaplan Publishing, 2008) Revised updated edition.
60 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 3
discussion on whether we actually can make any assumptions based on the information given on the worksheet. • Point to the “single mother with children” and the “single father with children” and ask participants whether they assigned these characters the same or different kinds of abilities, and the same or different occupations. Ask participants to reflect on why their responses were the same or different.
Ø When no new points are emerging, end the discussion by pointing out that in this exercise the best answer is no answer. In other words, leaving the worksheet blank can be considered the best answer. Not being able to quickly describe a person based on just one personal characteristic due to membership of a group could indicate that the person filling in the sheet is less likely to hold a bias against certain groups of people, or is more conscious about his or her bias.
Ø Roundup the exercise with the following conclusions: • All human beings have biases or prejudices. Having bias is natural, as it enables human beings to quickly jump to conclusions when faced with new information. • Biases become problematic when we allow them to influence our thinking so that we negatively judge persons not on their actual abilities but on preconceived ideas about the group they belong to. If allowed to go unchecked, bias easily leads to discrimination in the society and labour market. • It is important to recognize our natural bias and learn to control it. The point of this exercise is not only to become aware of our specific responses, but also to introduce the habit of “watching” our first thoughts, and “checking” whether we disadvantage an individual or group without objective reason. The goal is to make this “watch-and-check” eventually become automatic.
61 Equality and non-discrimination at work in Cambodia: Manual Exercise 3
Exercise 3. Be aware of your own bias
Handout. Exercise worksheet
Person What is this person like? What would be suitable What are his/her personal jobs for this person? characteristics and abilities? 1. A person in a wheelchair
2. An ethnic minority man wearing a traditional outfit
3. A single mother with three children
4. A 50-year old man in an expensive business suit
5. A young woman from a rural area
6. A blind person
7. A young, attractive woman
8. An immigrant
9. A single father with three children
10. A woman who is 1.80 m tall and weighs at least 100 kg
11. A young man wearing a T- shirt with the slogan: “Stop the spread of HIV/AIDS” 12. A woman wearing a T-shirt with the slogan “Unite for workers’ rights”
62 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 4
Exercise 4. What makes a woman? What makes a man?
Instructions for trainers75
Aim – To learn about biological and social differences between men and women, and to understand that gender values, norms and practices can be changed in the family, the workplace and society, if people want to.
Time – 30-45 minutes.
Room arrangement – Make at least three by six metres of empty space in the room so that participants can stand together and move during Step 1 and be seated in plenary for Step 2.
Training materials and preparation – Flipchart paper, colour markers and a roll of masking tape for Step 1 and cards or slips of paper in two different colours for each participant for Step 2. Place two flipchart on one end of the room on flipchart stands, a board or a wall. Leave about one metre space between the two flipchart papers. On one flipchart write ‘WOMAN’ and on the other ‘MAN’. Mark a start line on the floor about two metres in front of each blank flipchart.
Steps.
Step 1 – Sexy relay race – 15 minutes
Ø Tell the participants that they will have a drawing competition. Divide them into two teams with equal numbers of male and female participants in each team.
Ø Have each team line up with the first person standing behind the start line. Do not give the teams a marker until the rules are explained and understood. Explain the rules of the competition as follows: • One team will draw a woman and the other team will draw a man as fast as possible. The drawings will be from head to toe. • On the start signal, one person from each team starts by drawing one line and then runs back to hand over the marker to the second person who adds a new line, and so on. • All team members should get at least one chance to draw one line and then pass the marker to another person. Do this as fast as you can! • The team that has made the clearest drawing the quickest will be the winning team.
Ø Give a marker to the first person in each group and give the start signal. After the drawings begin to take shape and each team starts adding details, announce that there are only a few minutes left to keep a quick pace and maintain high spirits.
75 Adapted from R. Terhorst et al.: Women workers rights and gender equality manual – Cambodia, Module 3.2 Values and attitudes – Sexy relay race (ILO, Bangkok, 2004).
63 Equality and non-discrimination at work in Cambodia: Manual Exercise 4
Ø Stop the drawing competition when you see that the drawings have several clear physical and social characteristics of a boy (man) and a girl (woman) respectively: breasts for a woman; beard and Adam’s apple for a man; the sexual organs; a woman’s pregnancy or a baby on her back; bulging muscles in the arms of a man; differences in clothes and hair styles.
Note to trainers: Be sensitive to the culture of the participants. Some groups of participants may be too shy to draw the sexual organs, but this is not a problem, if other biological differences are clearly drawn. Do not push participants to draw the sexual organs, if they do not do it spontaneously.
Step 2 – Discussion – 15 minutes
Ø Ask everyone to come back to their seats and discuss the drawings together: Ask the participants: • Are the images clear? What is similar, what is different? • What are the characteristics of the woman drawing? • What are the characteristics of the man drawing? Write down the characteristics on the side of each drawing or on a different flipchart in the middle.
Ø Go through the characteristics noted besides each drawing one by one and ask the participants if the opposite sex can have the same physical or social characteristics. Mark the characteristics that participants say can be changed. For each characteristic, ask if the opposite sex can have the same, e.g., can a boy wear skirts and a man have long hair, can a girl play soccer and a woman be a police officer and so on? Once several characteristics have been marked, ask: • Which characteristics belong to just one sex only? (Biological attributes such as genitals and sexual organs, pregnancy, mustache, beard, and Adam’s apple) • What kind of characteristics cannot be changed? (Biological sex characteristics that are influenced by hormones and the ones that people are born with) • What kind of characteristics can both sexes have? (Social characteristics that people are not born with but later develop or learn in life such as outer appearances and personality; family, professional and social roles) • Are the social characteristics and roles attributed to women and men fair and just? • Do men and women have equal chances and opportunities to develop to their full potential?
Ø Explain the concepts of sex and gender using the Handout, as needed.
Step 3 – Roundup
Ø Conclude with the key learning points: • Women and men are born with a few different biological attributes, such as sexual organs and hormones that determine their reproductive functions, for example, men produce sperms, and women get pregnant and give birth. • Except for the reproductive functions, the differences between the two sexes in most other areas in life (i.e., behaviours, attitudes, social and family roles) are largely influenced by society. • The term gender refers to these social differences and relations between men and women. Boys and girls learn about gender rules, relations and roles while they are
64 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 4
growing up. These vary widely between and within societies, and from one generation to another. • Ideas and expectations about the gender characteristics, abilities and roles of women and men – about femininity and masculinity – may be flexible or rigid, and equal or unequal. They may limit the opportunities and potential of either or both sexes, but most often of women (usually because women have more workload and less decision-making power). • If women and men want to promote fairness and justice, they can change their ideas, if they want to.
Note to trainers: Some participants may wish to discuss gender identity and sexual orientation by bringing up plastic surgery and sex change operations. Trainers should briefly discuss this and acknowledge the freedom of human beings to choose their gender identity. However, do not spend too much time or alienate other participants. If the issue is raised, one way to respond is: Technology can minimize the physical differences between the two sexes. However, the most fundamental biological reproductive abilities that people are born with cannot be changed. Surgeons can change the shapes of eyes, nose, lips, breasts and sexual organs. A man can take female hormones to look like a woman, and a woman can take male hormones to look like a man. Yet, even with new sexual organs, a man who became a woman cannot grow an ovary, get pregnant or produce breast milk, and a woman who became a man cannot produce sperms.
65 Equality and non-discrimination at work in Cambodia: Manual Exercise 4
Exercise 4. What makes a woman? What makes a man?
Handout. Gender equality concepts and definitions76
Gender equality basics The sex children are born with influences their chances in life, alongside other important variables such as socio-economic class or caste, race or ethnicity. The biological differences of being born as a boy or a girl become important only later in life when children reach puberty. However, from the moment of their birth, all societies assign different roles, attributes and opportunities to boys and girls. They are socialized to perform the roles of men and women in their society based on the ideas in that society how men and women should or should not behave. These social meanings given to biological sex differences are covered by the term gender.
What is sex and what is gender?
Sex refers to the biological differences Gender refers to the social differences and between men and women, boys and relations between the two sexes. These are girls, that are universal and do not learned, vary widely within and between cultures change. For example, only women can and change over time. For example, in many give birth and only men can produce countries women take care of young children, but sperms. increasingly men are taking care of young children too. • People usually do not change their sex but they can change the gender differences and relations in their family and society if they consider that these are not just and fair.
It is useful to understand the difference between facts and opinions, in other words, the gender roles and the ideas in people’s heads on what girls and boys, men and women can and cannot do:
• Gender roles refer to the activities that both sexes actually do. For example, boys help their fathers outside the house and girls help their mothers with the household chores. Gender roles, although often reinforced by the gender values, norms and stereotypes that exist in each society, can and do change over time and across cultures.
• Gender values, attitudes and norms refer to the ideas that people have on what men and women of all generations should be like. For example, in many societies girls should be obedient and cute and are allowed to cry, and boys are expected to be brave and not cry.
• Gender stereotypes are the ideas and (firm) opinions that people have on what boys and men, girls and women are capable of doing. For example, it is often believed that women
76 N. Haspels and B. Suriyasarn: Promotion of gender equality in action against child labour and trafficking: A practical guide for organizations (ILO, Bangkok, 2003).
66 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 4
are better housekeepers and men better with machines, or that boys are better in mathematics and girls better in nursing. In most societies there are differences between the sexes in the rights they are given and the opportunities they have. Common disparities exist, for example between girls’ and boys’ access to education and training, between women’s and men’s workload, their access to and control over resources and benefits, and in the roles of men and women in decision- making. For this reason the international community and the majority of governments and civil societies are committed to promoting gender equality.
• Gender equality, or equality between the two sexes, refers to the equal rights, responsibilities, opportunities, treatment and valuation of women and men, girls and boys in life and at work. Gender equality means that people of all ages and both sexes have equal chances to succeed in life. It means that all human beings have equal, in other words, fair and just access to and control over resources and benefits so that all can participate in, decide on and benefit from development.
• Gender equality promotion is about ensuring equal outcomes and equal shares between men and women, boys and girls, so that all persons are treated with dignity and allowed to develop to their full potential, leading to a higher quality of life for all. It does not mean that women and men need to become exactly the same. Women and men can be and are different, but should have equal rights, responsibilities and opportunities in life. The way boys and girls, women and men, are treated and their work is valued should not depend on whether they are born male or female. Gender equality will be achieved when women and men enjoy the same human and workers’ rights, and are valued and treated equally and when there is a fair distribution between them of: • Responsibilities and opportunities. • Workload, decision-making and income.
67 Equality and non-discrimination at work in Cambodia: Manual Exercise 5
Exercise 5. Gender stereotypes: Facts or opinions
Instructions for trainers77
Aim – To explore and analyze the values and attitudes on gender roles in Cambodia and neighbouring countries, and to understand the difference between facts and opinions about sex and gender roles.
Time – 30-45 minutes.
Training materials and preparation – Make a copy of the Handout 1 and cut each proverb into jigsaw puzzle cards. Select two to three jigsaw puzzles for each group, and mix and shuffle each group’s cards. Make copies of Handout 3 for all participants.
Steps.
Step 1 – Proverb jigsaw puzzles– 15-20 minutes
Ø Introduce the aims of the exercise. Divide participants into small groups and give each group a set of jigsaw puzzle cards that make up two to three proverbs from Cambodia or neighbouring countries. Ask each group to put together the jigsaw puzzles and discuss the meaning of the proverb. Ask the groups also to discuss whether the proverb was true in the past and whether it is true now.
Ø After the groups have finished, ask a representative from each group to come to the front to tape or pin the proverbs on a flipchart, black board or wall, and to introduce the outcomes of their group discussion. Add information or correct misunderstandings on the meaning of each proverb using responses in Handout 2 as needed.
Ø After all proverbs have been introduced, facilitate plenary discussion on whether what the proverbs suggest is true now or was true in the past.
Step 2 – Facts or opinions? – 10-20 minutes
Ø Distribute copies of Handout 3 to all participants. Ask the groups to discuss the statements and decide which ones are facts and which ones are opinions. After the groups have finished, ask a representative from each group to introduce the results of their group’s discussion.
Ø After the groups have finished, note that examples 2, 4, 12, 14 and 16 are facts, while the other statements are opinions. Correct any misunderstandings and facilitate general discussion on what is a fact and what is an opinion. Emphasize that: • Facts can be proven to be true by evidence and something that everyone can agree on. • Opinions are views, feelings or beliefs that people have about something that are not based on facts and are not proven by evidence.
77 Adapted from B. Suriyasarn, R. Terhorst and N. Haspels: Empowerment for children, youth and families: 3-R trainers’ kit on rights, responsibilities and representation, Module 3. Equality in life and family (ILO, Bangkok, 2006).
68 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 5
Step 3 – Roundup– 5 minutes
Ø Round up the discussion as follows: • Opinions and prejudices about the roles of men and women and what they can and cannot do are common in all societies, but they are often not based on facts. Many of such opinions are perpetuated in proverbs and other expressions of traditional culture. Common examples are: “Women are weak and not as good workers as men, and men are better leaders”. While such stereotypes may sometimes be true they are often proven false. They are harmful because they help to create and perpetuate gender inequalities and discrimination. • In everyday life we constantly need to analyze the information we receive. The ability to judge if certain information is a fact or not helps us to make better decisions. Otherwise, we risk making mistakes, and discriminating other people by making wrong assumptions and decisions. It is important to distinguish between facts and opinions and seek more information to verify information before believing it. • Promotion of equality and combating discrimination requires legislation and effective policies. We need to find out what are the facts, what are harmful opinions and what aspirations have been set in law to promote fair, just and equal workplaces for all workers.
69 Equality and non-discrimination at work in Cambodia: Manual Exercise 5
Exercise 5. Gender stereotypes: Facts or opinions
Handout 1. Proverbs
(1)
men are bees women are flowers
(2)
having a as the first child is more precious having buffaloes and land daughter than
(3)
men are the front legs and women are the hind legs of the elephant
(4)
women should not discuss politics and monks should not discuss housework
(5)
men are diamonds (or gold) women are white cloth
(6)
only fools fear wife
(7)
raising a son is like raising a pig for a merchant
(8)
women are mothers of the world
(9)
having a is like having a toilet installed in front of the daughter house
70 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 5
(10)
we rather let the father die than the mother
(11)
having a having a jar of in front of the having a son is having a raging daughter is like fermented fish house like buffalo
(12)
men are close to the women are close to the house kitchen
71 Equality and non-discrimination at work in Cambodia: Manual Exercise 5
Exercise 5. Gender stereotypes: Facts or opinions
Handout 2. Responses
1. “Men are bees, women are flowers”. Meaning: Men are attracted to women’s beauty. (Khmer)
2. “Having a daughter as the first child is more precious than having buffaloes and land”. Meaning: It is better to have a daughter as the first child than having other assets because she can help with the family work. (Chinese)
3. “Men are the front legs and women are the hind legs of the elephant”. Meaning: Men are leaders and women are followers. (Thai)
4. “Women should not discuss politics and monks should not discuss housework”. Meaning: Women and men should not interfere in issues that do not concern them. (Lao)
5. “Men are diamonds (or gold), women are white cloth”. Meaning: Men are more valuable than women and cannot be stained. Women’s virginity before marriage needs to be protected. Pre-marital sex soils a woman’s image and reputation. (Khmer)
6. “Only fools fear wife”. Meaning: It is foolish for a husband to worry about what his wife thinks. (Mien)
7. “Raising a son is like raising a pig for a merchant”. Meaning: A son is like a (wasted) investment that you lose to another party. (Lao)
8. “Women are mothers of the world”. Meaning: Women are mothers and nurturers.(Khmer)
9. “Having a daughter is like having a toilet installed in front of the house Meaning: Having a daughter is a liability in that the daughter’s bad behaviour can plainly and easily soil the image and reputation of the family. (Thai)
10. “We rather let the father die than the mother”. Meaning: Mothers are more important for family survival. (Khmer)
11. “Having a daughter is like having a jar of fermented fish in front of the house, having a son is like having a raging buffalo”. Meaning: Bad behaviours of daughters can soil the reputation of the family and sons are hard to control. (Tai Lue and Shan)
12. “Men are close to the house, women are close to the kitchen”. Meaning: Men work outside and around the house, while women work inside the house. (Vietnamese)
72 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 5
Exercise 5. Gender stereotypes: Facts or opinions
Handout 3. Exercise worksheet
Check ü in the appropriate column for each statement.
Need No. Statement Fact Opinion more info 1 Women and girls are sweet, gentle and kind.
2 Most men are bigger and taller than women.
3 Real men do not cry.
Only women can get pregnant and give birth to 4 babies. 5 Women make better parents than men. Boys and men do not need to do housework 6 because it is a women’s and girls’ job. Girls do not need high education because they 7 will get married anyway. Men make better leaders and company managers 8 than women. 9 Women cannot do hard and dangerous jobs. 10 Men are more decisive than women. 11 Women are more honest than men. Pregnant women should not do heavy physical 12 work because it will harm the baby. It is best that women and men work in jobs that 13 are suitable for the physical and psychological characteristics of each sex. Around the world, there are more girls out of 14 school than boys.
15 Women are better cooks than men.
In many countries, men get paid more than 16 women for doing the same job. It is okay for men to get paid more than women 17 because they are the providers of the family. Both women and men can be victims of sex 18 discrimination.
73 Equality and non-discrimination at work in Cambodia: Manual Exercise 6
Exercise 6. Perceptions on men and women at work
Instructions for trainers
Aim – To analyze stereotyped ideas about women’s and men’s characteristics and abilities as workers and explore how these stereotypes can lead to segregation in the labour market.
Time – 30-45 minutes.
Training materials and preparation – Cards in four colours (one for each question) and flipchart papers. Prepare four flipchart papers and give them headings as in the handout. Hang the flipcharts on a wall or put them on the floor.
Steps.
Ø Introduce the aims of the exercise. Divide participants into small groups and distribute the Handout and coloured cards to all participants. Ask each group to discuss perceptions about women and men as workers, colleagues or managers at the workplace, briefly describe their positive and negative characteristics and write their comments on the cards.
Ø After the groups have finished, ask participants to put their cards on the relevant flipchart papers. Below are some examples of the expected answers: o Positive characteristics of women workers often include: hard working, trustworthy, friendly, service-oriented, obedient or beautiful, while for men they often include: strong, able to work long hours, carry heavy loads, decide quickly or charming. o Negative characteristics of women workers often include: gossipers, not confident, sensitive and weak or take long to make decisions. Negative characteristics of men workers often are: dominant, aggressive, bossy, self- centered or tendency towards (sexual) harassment.
Ø Ask participants to comment on the observations made by the groups. Highlight some of the characteristics mentioned by the groups and ask whether they are common only for men or women, or whether some individuals of both sexes may have the characteristic. Encourage participants to also question whether the characteristics described are facts, or stereotyped ideas or assumptions. Facilitate the discussion towards establishing a joint understanding that many perceptions on men’s and women’s characteristics at work are not based on facts, and that physical and psychological differences between individuals of either sex are more significant than differences between the two sexes.
Ø Invite participants to share their views on the effects of stereotyped ideas about the characteristics of women and men on their free choice of employment or occupation and position, and their roles, responsibilities and relationships in the workplace. Ask to what extent women tend to be concentrated in jobs that are considered as “women’s jobs” and men in jobs that are considered “men’s jobs” in the country’s labour market.
74 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 6
Ask for examples of typical men’s and women’s jobs and how this affects the salary levels and other terms and conditions of work for both women and men. Question whether channeling women into certain types of jobs and men into other types of jobs is the most efficient way to utilize the human resource pool in a country.
Ø Round up the discussion as follows: • Many societies in South-East Asia and elsewhere have strong stereotyped ideas about characteristics and abilities of women and men. For example, women are often seen as weak, vulnerable and in need of protection, whereas men are seen as strong and better suited to leadership positions. These perceptions are often based on traditions and old fashioned ideas. They are usually invalid as they are not based on factual evidence. For example, studies carried out in the US and Europe show that the capacity ranges of female and male worker groups are in fact very similar. Differences among working populations are mainly based on individual human variability rather than on biological differences between the sexes.78 • Highlight that fewer jobs are available to women than to men, and female- dominated jobs offer less pay and status. Occupational sex segregation in the labour market often leads to undervaluation of women’s work and underutilization of their talent and potential. • Traditional perceptions about women as fragile and weak have led to protective attitudes towards women workers in many countries. While women do need special protection during pregnancy and after childbirth, but in other instances excessive protection may in fact create obstacles to women’s equal opportunities in the labour market. • Gender role stereotypes lead to limited employment choices for both women and men. This disadvantages especially women, whose employment opportunities are often limited to lower paid jobs with less responsibility. Affirmative action is an important strategy to facilitate women’s and men’s access to training and employment in non-traditional sectors.
78 V. Forastieri: Information note on women workers and gender issues on occupational safety and health (Geneva, ILO, 2000).
75 Equality and non-discrimination at work in Cambodia: Manual Exercise 6
Exercise 6. Perceptions on men and women at work
Handout 1.
What do you like about about women at What do you dislike about women at work? work?
What do you like about about men at What do you dislike about men at work? work?
76 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 7
Exercise 7. Different approaches to multiculturalism: Game
Instructions for trainers
Aim - To recognize the importance of respecting cultural diversity and to discuss different approaches to multiculturalism.
Time – 15 minutes.
Room arrangement – Make space in the room so participants can stand in one large circle and move around. The activity can be organized also as an outdoor energizer.
Training materials and preparation – Write names of ingredients used to make fruit salad in Cambodia on coloured cards: One ingredient per card and three to four cards of the same colour for the same ingredient, for example, mango, papaya, cucumber, pineapple, bean sprouts, salt and pepper for a group of 21 to 28 people. Make sure you have as many cards as there are participants in the game.
Steps.
Step 1 – Game – 10 minutes
Ø Share the aims of the exercise with participants. Give each participant one card and ask them to stand in a large circle. Ask everybody to put their card on the floor, and make sure that persons with the same ingredient are not standing next to one another.
Ø Announce the rules of the game: • The facilitator will call out the names of the ingredients written on the cards. When the name of an ingredient is called, all the persons standing behind a card with that name must run and change places with one another. • When the facilitator calls “rujak” (fruitsalad), then everybody must change places. However, the “mangos” can only go to a “mango” place and “pineapples” can only go to a “pineapple” place etc. The participants cannot change the type of fruit or ingredient they have, but must change place with another person who has the same ingredient.
Ø Start the game by calling out the first ingredient. Repeat the same procedure. Finish when everybody has changed places at least a few times.
Step 2 – Discussion – 5 minutes
Ø After finishing the game ask the participants whether any of them can guess why this exercise is used to initiate discussion on equality and multicultural societies. Take a few guesses and facilitate discussion before explaining.
77 Equality and non-discrimination at work in Cambodia: Manual Exercise 7
Ø Explain the rationale of the exercise: • Rujak or rojak is a fruit salad popular in Indonesia, Malaysia and Singapore. Apart from being a local favorite dish, rujak is also commonly used as a metaphor for a multicultural and multi-ethnic society. Singaporeans and Malaysians call their societies with people of Malay, Chinese, Indian and many other ethnic origins “a rojak society”. • Similar metaphors are used elsewhere to describe a multicultural society. For example, in the United States (US) over the past 40 years there has been a shift from the traditional ‘“melting pot” approach to a “salad bowl” approach to multiculturalism. The US has traditionally referred to its society as a large melting pot, where all immigrant groups are melted together and all people become primarily “American”. This approach has a nationalist flavour and it emphasizes assimilation, that is, making the heterogeneous elements become more homogenous. • The melting pot approach has been strongly criticized in the US from 1970s onwards as multiculturalists consider that it hurts minority cultures because the majority culture tends to dominate and be the norm. • The multiculturalists suggested a new metaphor for a multicultural society, the salad bowl (or a “mosaic”). This approach values cultural differences in the society and seeks to preserve them. In this approach, the different cultural elements are mixed together, but they remain distinct and differences are respected.
Ø Give the roundup points as follows: • Like in the wider society, respect for each other’s differences is an essential precondition for establishing good working relationships and a healthy work environment. • Respect for cultural diversity is an essential element for promoting ethnic, gender and religious equality in employment and occupation. Conduct such as giving preference to persons belonging to one’s own ethnic group or telling racist or sexist jokes should never be tolerated at the workplace.
78 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 8
Exercise 8. Identifying discrimination: Group work
Instructions for trainers
Aim – To recognize workplace discrimination on various grounds and discuss the definition of discrimination as given in Convention No. 111.
Time – 30-40 minutes.
Seating arrangements – Small group seating.
Training materials – Prepare flipchart papers and marker pens for each group.
Steps.
Step 1 – Group work – 20-30 minutes
Ø Share the aims of the exercise and split participants into small working groups by “ground of discrimination” sex, ethnicity/race/colour, religion/creed, social origin/birth, and disability/HIV infection.
Ø Give the groups five minutes to discuss as follows: • In your group, give two to three examples of discrimination that your target group may encounter at the workplace. Describe situations that are most commonly faced by these workers, and the effects. If possible, distinguish between visible and hidden forms of discrimination. • List one or more measures taken by your organizations to combat such discrimination. If your organizations have never addressed workplace discrimination, brainstorm on which measures could be taken. • Write the results of discussion on the flipchart provided to each group.
Ø After the groups have finished discussion, ask one person from each group to present their views.
Ø Optional: If you do not have much time, you can pose the questions in plenary and elicit ideas from participants by asking them to write examples on coloured cards, which you will post on a flip chart for discussion.
Step 2 – Presentation of key concepts and discussion – 10 minutes
Ø Explain the key concepts related to discrimination and equality: • Referring to examples raised by participants clarify the definition of discrimination under Convention No. 111, emphasizing the three types of action that constitute discrimination.
79 Equality and non-discrimination at work in Cambodia: Manual Exercise 8
Discrimination is:
1. Distinction in treatment … • E.g. different pay for women and men for work of equal value. 2. Exclusion from an opportunity… • E.g. rejecting a job applicant who has a health condition that does not impair his/her ability to perform the job. 3. Preference given… • E.g. giving preference to persons belonging to certain ethnic groups in recruitment of civil servants.
…on the basis of race, colour, sex, religion, political opinion, social origin or national extraction, or other personal characteristics…
…that impairs equality of opportunity and treatment at work.
• Recall that the Convention does not only call for action against discrimination but requires promotional action towards equal opportunity and treatment at work: the other side of the same coin (= exactly the opposite of discrimination):
Equality of opportunity and treatment at work means:
Decisions at all levels of the work cycle (from access to training and employment to retirement) are made on the basis of the inherent job requirements related to: • Qualifications, skills and work experience. • Responsibility. • Effort. • Working conditions.
…. without interference of discriminatory bias and assumptions based on the applicant’s/worker’s sex, race/ethnicity/colour, religion, political opinion, social origin or national extraction.
• Ask participants for further comments or questions, and round up the discussion.
80 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 9
2.2 Role-plays to experience discrimination
Exercise 9. “Do I have a chance to get the job?” Role-play
Instructions for trainers
Aims – To experience discrimination in access to employment, and to discuss how discrimination can cause human and financial losses to both employers and workers.
Time – 20-40 minutes.
Room arrangement – Make space in the room so the full group can stand together and move around for Step 1 and be seated in plenary for Step 2.
Training materials and preparation – Make a copy of the Handout. Give each character a name and cut the identity cards, one for each participant in advance.
Steps.79
Step 1 – Role-play – 20-35 minutes
Ø Give each participant one card with the description of a new identity. Tell participants to read them carefully as they will have to behave as if they are the person described on their card. Ask a few participants who they are and make sure everyone understands the scenario.
Ø Ask participants to take their cards and stand, forming a big circle in the room. The facilitator should stand in the centre of the circle.
Ø Announce the rules of the game: • You will hear a series of requirements for applicants to a job, they will be read out one by one. • Based on the characteristics of your new identity, answer YES or NO to each requirement after it is read out. If your answer is YES, move one step forward. If you answer is NO, move one step backward. • Those who have stepped backward once cannot answer future questions (they should stay in the back).
Ø Start the role-play: • Start the recruitment process by stating: “Thank you very much for participating in the staff selection for the ‘Business Associate’ post in the XX Branch of XX Group, based in XX city (usually venue of the training). Recruitment criteria have been set for the post, and I will read them aloud”.
79 Adapted from ILO: “Module 4. Promoting equality and diversity in the workplace”, in The labour dimension of corporate social responsibility: From principle to practice (Turin, International Training Centre, 2007).
81 Equality and non-discrimination at work in Cambodia: Manual Exercise 9
• Read the following criteria one by one. After each statement, allow some time for participants to move accordingly:
Recruitment criteria: (a) University degree or above in economics, international business, management or other related fields, MBA preferred. (b) Age 25-30, healthy and pleasant appearance. (c) Minimum three years of relevant working experience. (d) No trade union affiliation. (e) Full command of local language required. (f) Be able to work irregular hours and overtime (after 7p.m.). (g) Be able to travel frequently. (h) Driving license desirable.
• Thank the participants who have moved to the back for their participation and dismiss them as they do not meet the criteria – they can take a seat and observe. • Congratulate the qualified applicants and announce that interviews will take place in the company’s meeting room today at 7.30 p.m. Ask the participants who qualified for the interview to confirm their participation, and ask those who cannot attend the interview at 7.30 p.m. to step out. If instructions are correctly interpreted, participants with family responsibilities (young children, disabled relatives) will not be able to attend. Ask those who gave up to announce why they are giving it up and allow them to voice their reasons, justifications, etc. • Note to the facilitator: If the instructions were followed correctly, there should be no more than four persons (numbers 8, 11, 14 and 25) who are able to participate in the final interview. If more participants chose to stay, some of them probably did not respond according to the characteristics of their new identity.
Ø Ask those who can attend the job interview to share their identity and conclude: They are young, have no trade union affiliation, no family responsibility, and no disability. Three of them are men and only one is a woman.
Ø Ask some of the participants who stepped backward to read their ID cards aloud, and explain why they were rejected (education, new graduate, disability, sex, family responsibility, etc.), and whether they suffered any type of discrimination in the recruitment process. After soliciting a few responses from participants, point out that some of the requirements are discriminatory, while others are related to the inherent requirements of the job.
Step 2 – Roundup – 5 minutes
Ø Reconvene in plenary and conclude by asking: Was it really in the employers’ interest to exclude these applicants. Highlight the merit and ability of excluded candidates. Emphasize that discrimination may cause a waste of human resources as talented people may not get the opportunity due to factors that are not actually required for a job.
82 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 9
Exercise 9. “Do I have a chance to get the job?” Role-play
Handout. Identity cards
Mr Bora, male, 28, unmarried, Mr Bunna, male, 34, migrated to migrated to this city in 2007, trade this country in 2007, limited union activist, college diploma in knowledge of the local language, related field, has worked in a trade no trade union affiliation, has company in this city over the past worked in a local company on three years, no driving license. (1) business development over the past three years, has a good network of clients. (2)
Ms Tevy, female, 23, unmarried, Ms Nary, female, 28, local, BA in transmigrated to this province in related field, five years of relevant 2008, limited knowledge of the local experience; married, one three- language, no university degree, trade year-old child who should be union activist, no driving license. (3) picked up from kindergarten on working days before 7 p.m.; her husband frequently works overtime. (4)
Ms Srey Neang, female, 30, local, Ms Rachana, female, 29, local, MBA, three years of relevant married, no children, bachelor’s experience, divorced, has one child degree and five years of experience who needs to be picked up from in a related field, husband working primary school before 7 p.m. every in another city, has a paralyzed day, with driving license. (5) mother-in-law to look after, the day- time helper leaves at 7 p.m. (6)
Mr Phearak, male, 29, single, local, Mr Panha, male, 26, local, single, bachelor degree in marketing, fluent bachelor’s degree in a related in the local language, lives with field, has worked three years in disabled mother who is looked after sales in an enterprise, speaks the by a day-time helper until 6 pm local language, lives with parents, every day, has driving license. (7) has driving license. (8)
Ms Samphors, female, 25, Mr Sovann, male, 30, no trade unmarried, local, bachelor’s degree union affiliation, speaks the local in trade, minor disability on the left language, bachelor degree in leg. (9) related field, three years of working experience, divorced, lives with his primary-school daughter who is looked after by a day-time helper until 7 p.m. no driving license. (10)
83 Equality and non-discrimination at work in Cambodia: Manual Exercise 9
Mr Vuth, male, 30, no trade union Ms Lida, female, 28, no trade affiliation, speaks the local language, union affiliation, speaks the local five years of relevant experience, language, bachelor degree in with driving license. (11) business field, three years of relevant experience, married, husband is very busy, and does not want her to travel much. (12)
Mr Keo, male, 30, single, no trade Ms Sophorn, female, 28, single, union affiliation, speaks the local no trade union affiliation, speaks language, bachelor degree in the local language, MBA, three business management, five years of years experience as a business business experience, no family assistant in a foreign company, responsibility and is able to travel with driving license. (14) frequently, no driving license. (13)
Mr Sarith, male, 28, no trade union Mr Sopheap, male, 33, bachelor affiliation, speaks the local language, degree, migrated to this city in MBA, five years of relevant 2007, trade union activist, five experience, divorced, one child who years of relevant experience, with needs be picked up before 7 p.m. driving license. (16) every day, has driving license. (15)
Mr Kheang, male, 28, speaks the local Ms Rangsey, female, 30, speaks language, no trade union affiliation, the local language, no trade union master degree, four years of relevant affiliation, master degree, four experience, married, has a six-months years of relevant experience, old baby, living with parents, wife married, a five-month old baby, no returned to work after maternity leave, driving license. (18) no driving license. (17)
Ms Makara, female, 29, speaks the Mr Sitha, male, 27, migrated to local language, married, no trade this country in 2006, no trade union affiliation, no children, union affiliation, limited bachelor degree in relevant field, six knowledge of the local language, years of relevant experience, single, obtained MBA recently, husband works in another country, bachelor’s degree in food hygiene, no driving license. (19) has done technical work in a food company since MBA graduation, has driving license. (20)
Mr Kiry, male, 28, local, 6 years of Mr Borin, male, 27, no trade union relevant experience, no university affiliation, speaks the local degree, married, has a five-year old language, bachelor degree in child who needs to be picked up relevant field, five years of relevant from the kindergarten every day, a experience, 156cm, no driving busy wife who doesn’t want him to license. (22) work overtime or travel a lot, has driving license. (21)
84 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 9
Ms Raksmey, female, 33, speaks the Mr Mara, male, 34, no trade union local language, trade union activist, affiliation, speaks the local bachelor degree in relevant field, five language, bachelor degree in years of relevant experience, relevant field, five years of married, no child, no driving license. experience in business, married, (23) no child, no driving license. (24)
Mr Sarann, male, 27, no trade union Ms Vineth, female, 28, single, affiliation, speaks the local language, speaks the local language, no married, no child, bachelor degree in trade union affiliation, MBA, three related field, five years of relevant years of relevant experience, lives experience, has driving license. (25) with a disabled brother who needs care, the day-time helper works from 8 a.m. - 7 p.m. (26)
Mr Chheng, male, 40, speaks the Mr Chhim, male, 26, unmarried, local language, no trade union no trade union affiliation, migrated affiliation, married, bachelor degree, to this city in 2009, limited has relevant experience, has driving knowledge of the local language, license. (27) bachelor degree in related field, five years of relevant experience, no driving license. (28)
Ms Rana, female, 38, local, Mr Visoth, male, 29, local, master unmarried, bachelor degree in degree in related field, unmarried, related field, 12 years of relevant four years of relevant experience, experience, has driving license. (29) is the only child in the family, father is paralyzed who needs care every day, day-time helper leaves at 7p.m., no driving license. (30)
Mr Vimol, male, 26, no trade union Mr Narong, male, 29, local, affiliation, speaks the local language, married, bachelor degree in related unmarried, bachelor degree in field, five years of relevant related field, five years of relevant experience, daughter needs to be experience, harelipped, has driving picked up from kindergarten license. (31) before 7 p.m., wife finishes work at 8 p.m. (32)
Ms Dalen, female, 28, local, Ms Soya, female, 26, MBA, speaks married, master degree in related the local language, no trade union field, 4 years of relevant experience, affiliation, unmarried, bachelor has a six-months old baby, no degree in related field, five years parents living nearby, day-time of relevant experience, harelipped, helper leaves at 6 p.m., no driving has driving license. (34) license. (33)
85 Equality and non-discrimination at work in Cambodia: Manual Exercise 9
Ms Tharine, female, 28, local, MBA, Ms Sokhom, female, 30, four years of relevant experience, unmarried, migrated to this city in divorced, has one child who needs to 2008, limited knowledge of the be picked up from kindergarten local language, no trade union before 7 p.m. every working day of affiliation, college diploma in the week, has a driving license. (35) related field, has worked in a trade company over the past three years, no driving license. (36)
Mr Sothea, male, 38, speaks the Mr Phalla, male, 30, local, local language, no trade union bachelor degree in related field, affiliation, single, college diploma, two years of relevant experience, over 10 years of relevant experience, divorced, lives with a son in has a driving license. (37) primary school age, day-time helper leaves at 7 p.m., no driving license. (38)
86 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 10
Exercise 10. Rules of the game: Role-play
Instructions for trainers80
Aim – Toexperience power and powerlessness, and discuss discrimination on the basis of social origin.
Time – 30 minutes.
Seating arrangements – Make space in the room so that participants can move freely during Step 1 and be seated in plenary for Step 2.
Training materials and preparation – Prepare labels or batches in two different colours (e.g. green and yellow) for all participants. Write the rules of the game for each colour group on a flipchart.
Steps.
Step 1. Role-play – 20 minutes
Ø Give each participant randomly either a green or yellow label and ask them to wear the label at all times during the game. Tell participants that in this game they will have to behave according to the rules established for the colour of their label.
Ø Hang the flipchart listing the rules of the game on a wall in a place where participants can see it when moving around the training room, and announce the rules of the game:
People with green labels: • May not sit on chairs and may not drink anything. • May not be together in one place with more than one other person. • May not refuse to obey a “yellow”, nor argue. • May not talk to a “yellow” unless spoken to.
People with yellow labels: • May sit on chairs and drink anything. • May join others freely. • May give orders to a “green”. • May talk to anyone in the room freely.
Ø Start the role-play and instruct participants to move around and interact with each other in accordance with the rules of the game. During the exercise monitor the
80 Adapted from ILO: The labour dimension of corporate social responsibility: From principle to practice, Module 4 Promoting equality and diversity in the workplace (Turin, International Training Centre of the ILO, 2007).
87 Equality and non-discrimination at work in Cambodia: Manual Exercise 10
behaviour of the “greens” and the “yellows” and take note of differences (e.g. domineering – submissive, loud – silent, arrogant – insecure).
Ø After 10-15 minutes stop the game and ask participants to return to their seats.
Step 2. Discussion – 10 minutes
Ø Ask participants how they felt about the game and what they learned. Ask for example: • How did it feel to be a “yellow” or a “green”? • What was the best/worst thing about being a “green” or a “yellow”? • What do you think of these rules?
Ø Briefly share your own observations on the behaviour of “greens” and “yellows” during the exercise with the group.
Ø Share the aims of the exercise with the participants. Explain that in many societies people from a certain social origin, that is, a social group, caste or class may find themselves treated differently in life, at school, in training, at work and in other social and economic activities. In this exercise, participants experience how it feels to be part of a superior class (“yellow”) or an inferior class (“green”). Ask participants to further comment on the exercise. Ask them also whether there are any divisions like this in their society. Encourage participants to share their views and facilitate the discussion.
Ø Round up the discussion as follows: • In many societies, people are “labeled” according to their social origin, that is the social group, caste or class they belong to. People are generally treated differently depending on their social origin. People from the “inferior” social group face many types of prejudice and discrimination in life and at work. They are often excluded from equal opportunity and treatment, sometimes due to bias and prejudice of the majority population, sometimes due to laws or other rules set in the society. • Convention No. 111 prohibits discrimination on the ground of social origin and requires ratifying States to take active measures to promote equal opportunity and treatment in employment and occupation for all workers, regardless of their social origin. • Most Asian societies have some form of social stratification based on social origin. The most visible form of discrimination on the grounds of social origin is the caste system in India. Other examples include the situation of the Burakumin in Japan and the household registration system in China and Viet Nam which classifies people either as “rural people” or as “urban people”. While in countries like Cambodia and Thailand the rights and status of rural and urban people are officially the same, in practice rural people often are looked down upon and treated like “second class people” by urban residents. International development agencies have noted that the hierarchical order of the society, with notions of power and status conditioning social and gender relations, may constrain Cambodia’s development.81
81 UNIFEM, World Bank, Asian Development Bank, UNDP and DFID/UK: A fair share for women: Cambodia gender assessment (Phnom Penh, 2004), p.3.
88 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 11
2.3 Exercise to discuss the rationale for equality promotion
Exercise 11. Why is equality good for people, society and business?
Instruction for trainers
Aim – To analyze how discrimination makes an individual person feel, and what the benefits of equality and the costs of discrimination are for society and business.
Time – 30-40 minutes.
Training materials and preparation – Prepare flipchart papers and marker pens for all groups. Use the last three slides of slide presentation 1. The equality principle, standards and rationale for giving the round up points in Step 3.
Steps.
Step 1 – Group work – 10 minutes
Ø Introduce the aim of the exercise.
Ø Show a flipchart or a power point slide with the following questions: • Question A. Equality: What are the benefits for individuals? • Question B. Equality: What are the benefits for businesses? • Question C. Equality: What are the benefits for society?
Ø Divide participants in small groups. Assign each group one of the questions A, B or C for discussion. Ask each group to prepare a presentation on a flipchart, and select a spokesperson to present it in plenary. Give the groups maximum 10 minutes to discuss.
Step 2 – Plenary discussion – 10-20 minutes
Ø Ask each group to present their views. Facilitate discussion by highlighting good points raised by the participants. Encourage participants to also share their views on the main obstacles for realizing equality and what could be done to overcome them. Motivate participants to discuss examples from their own working life.
Step 3 – Round up the key learning points – 10 minutes
Ø Conclude the discussion by emphasizing that discrimination is a waste of talent and reiterate some of the key points from the discussion.
Ø Round up the exercise by giving a short presentation on the key learning points. & Use the slides in slide presentation 1. The equality principle, standards and rationale.
89 Equality and non-discrimination at work in Cambodia: Manual Exercise 11
Question A. Equality: What are the benefits for individuals? • Important for individual job satisfaction and work morale. • Makes individuals feel respected, valued and fairly treated. • Allows individuals to develop their skills and pursue their own development. • Enables individuals to pursue material well-being for their families. • Reduces frustration, conflict and risk of social instability.
Question B. Equality: What are the benefits for businesses? • Improved employee well-being and satisfaction. • Improved employee commitment, motivation and productivity. • Improved ability to attract talent and lower turnover rate. • Optimal utilization of human resources: The company’s most important asset and competitive edge over competitors. • Greater diversity and fostering innovation and creativity. • Legal compliance and risk management, such as risk of litigation. • Shareholder approval, brand value protection. • Consumer and stakeholder satisfaction.
Question C. Equality: Why is it important for society? • Inclusive labour markets are effective and productive. • Prevents social exclusion. • Productive enterprises create value for themselves, their employees and the national economy. • Equal opportunities in the labour market motivate people to develop their skills and pursue their own development for the good of society. • Important for national human resources and skills development. • Institutional discrimination may lead to an increased risk of social instability. • Discrimination can cause individual frustration that may lead to violence.
90 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 12
2.4 Exercises to disseminate information on disabilities and health conditions
Exercise 12. Disability and ability
Instructions for trainers
Aim - To recognize that persons with disabilities have abilities and can be productive members of the labour force and to illustrate the need to shift from the charity and medical approaches to a social approach towards disability.
Time – 10-20 minutes.
Training materials and preparation – Find pictures of well-known talented persons with disabilities in the internet or magazines. Some suggestions of persons to be introduced are given in the Handout. It is recommended to add a few pictures of local celebrities. Make the pictures into a slide presentation, or cut them out for showing to participants.
Steps.
Ø Share the aims of the exercise with participants. Explain that in the English language “disabled” means somebody who has lost his or her “ability” or whose “ability” has been taken away. Actually this concept is misleading, because an injury or disorder in one area does not take away the person’s ability in other areas. Many persons with disabilities are very talented persons and productive members of the workforce.
Ø Show the first picture to participants. Ask the audience whether they know who the person in the picture is. Take a few guesses and let the participants explain the achievements of the person. Ask participants to also explain what type of disability the person in the picture has. Add any information not mentioned by participants, using your own notes or the responses provided in the Handout. Before moving to the next picture, roundup the discussion by asking participants whether the person in the picture is “able” or “unable”. (Everybody will usually agree that the person in the picture is “able”.)
Ø Repeat the same procedure and facilitate the discussion on all the pictures. For each picture, always roundup the discussion by asking in the end whether the person in picture is “able” or “unable”.
Ø Roundup the discussion as follows: • When talking about disability it is important to remember that having one type of injury or disorder does not take away the person’s ability in other areas. Most persons with disabilities are very “able” people and they are as eager to participate in society and develop their individual talent as any other person. Persons with a disability just need a little assistance to ensure that they can contribute to their full
91 Equality and non-discrimination at work in Cambodia: Manual Exercise 12
capacity. Some examples of assistance measures include artificial limbs, hearing aids and wheelchairs. • Over the past 40 years, there has been a significant change in the approaches to disability from the charity and medical approaches towards a rights-based social approach that prioritizes the abilities, diversity and rights of persons with disabilities. The new social approach puts the focus on the removal of disabling barriers through improving access to the environment and addressing discrimination, stigma and negative attitudes against disability. • While attitudes are changing also in Cambodia, the UN Committee on Economic, Social and Cultural Rights (CESCR) has expressed its concern that persons with disabilities continue to suffer from the inaccurate stereotype that they cannot be productive members of society.82Fighting these stereotypes is important to promote improved access to employment, especially skilled employment, for persons with disabilities in Cambodia.
& When giving the roundup points, refer to Slide No. 10 “Approaches and definitions” in the slide presentation: Addressing discrimination against persons with disabilities: Key issues and strategies.
82 Committee on Economic, Social and Cultural Rights (CESCR). 2009. Concluding observations of the Committee on Economic, Social and Cultural Rights: Cambodia, E/C.12/KHM/CO/1.
92 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 12
Exercise 12. Disability and ability
Handout. Responses83
1. Stevie Wonder • American singer-songwriter and multi-instrumentalist, record producer and activist. • Stevie Wonder became blind shortly after birth. However, his blindness did not keep him from dedicating himself to music, and he signed a record contract with Motown Records at the age of seven. • Stevie Wonder has recorded over 30 US top ten hits and received 22 Grammy Awards. Some of his most famous songs include “I Just Called to Say I Love You” and “You Are the Sunshine of My Life”.
2. Steven Hawkings • English theoretical physicist and cosmologist. He was a professor in mathematics at Cambridge University for 30 years (1979-2009). His special areas of expertise include cosmology, gravity and black holes • Steven Hawking has a rare motor neurone disease called ALS, which over the years has left him almost completely paralyzed.
3. Marlee Matlin • American actress. She won the Academy Award (Oscar) for Best Actress in a Leading Role at the age of 21 for her role in the movie “Children of a Lesser God” (1986). She is the youngest ever woman and the only deaf actress to win this title. • Marlee Matlin is deaf since she was 18 months old. • Marlee Matlin is also an activist and an advocate of disability rights. She has cooperated with the ILO to promote equal employment opportunities for persons with disabilities.
4. Tun Channareth • Cambodian internationally renowned advocate for a ban on landmines. In 1997 Tun Channareth accepted the Nobel Peace Prize on behalf of the International Campaign to Ban Landmines. • Tun Channareth stepped on a landmine in 1982 when serving as a resistance soldier near the Thai-Cambodian border. The explosion took both of his legs. • Tun Channareth spent 13 years at a Thai refugee camp. After his return to Cambodia in 1993 he began to make affordable wheelchairs for landmine survivors and became involved in humanitarian work. Channareth and other disabled veterans collected more than one million signatures from Cambodian supporters to push for a ban on landmines.
5. Sao Sokhoeun • Internationally known Cambodian singer known for her beautiful high pitch voice. She currently lives in Australia, and has also toured in the United States.
83 Wikipedia websites: “Stevie Wonder”, “Steven Hawkings”, “Marlee Matlin”, “Oscar Pistorius”, http://en.wikipedia.org/; “Sao Sokhoeun - The Blind Female Singer”, http://khmer.cc/community; International Campaign to Ban Landmines (ICBL) website, http://www.icbl.org (accessed 15 Aug 2012).
93 Equality and non-discrimination at work in Cambodia: Manual Exercise 12
• Sao Sokhoeun is blind. She was born with normal eyesight, but lost her sight because of a disease at young age.
6. Oscar Pistorius, the “Blade Runner” • South African Paralympics athlete. He won three gold medals in the 2008 Beijing Paralympics (100m, 200m and 400m). • Oscar Pistorius was born without lower leg bones (fibulae), and his deformed lower legs were amputated at the age of 11 months. • Oscar Pistorius runs with carbon fibre artificial limbs. Actually, he runs so fast that his artificial limbs have generated claims that he has an unfair advantage over able-bodied runners. This claim was taken to the International Association of Athletics Federation (IAAF), which ruled Pistorius ineligible for competition with able-bodied runners. This decision was overruled by the Court of Arbitration for Sports in 2008. • At the 2012 Summer Olympics in London, Pistorius became the first double leg amputee to participate in the Olympics alongside able-bodied athletes. He made it into semi-finals in men’s 400 metres individual competition, and participated also in the South African 4x400 metres relay team, which finished eighth in the finals. • Pictures of Oscar Pistorius as a young child show him smiling happily regardless of his amputated legs. These pictures illustrate clearly that there is no reason not to encourage any children to develop themselves from a young age in whatever area they enjoy and are good at. Anybody can make great achievements in areas where they are talented, if allowed an equal opportunity to participate and develop his/her potential.
94 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 13
Exercise 13. Quiz and discussion on HIV
Instructions for trainers
Aim – To disseminate correct information about the transmission and non-transmission routes of HIV and to discuss stigma and discrimination on the ground of these health conditions.
Time – 40 minutes.
Seating arrangements – Ensure all participants are positioned so that they can clearly view and hear the movie. Subtitles can be turned on for participants with hearing impairments.
Training materials and preparation – Use the slide presentation provided for this exercise and the movie “Hometown fellows” on DVD (6-7 minutes).84 Prepare the necessary equipment for showing the slides and the movie.
Steps.
Step 1 – Quiz – 20 minutes
Ø Share the aims of the exercise with the participants. Show slides 1-13 with the pictures depicting transmission and non-transmission routes of HIV one by one, and ask participants whether HIV can be transmitted through the contact illustrated in the pictures. Take a few guesses and explanations from participants on each of the pictures, and correct any misunderstandings using the Handout with the responses, as needed.
Ø In conclusion, show the last two slides summarizing the ways that HIV can be transmitted and the ways in which they cannot be transmitted. Facilitate further discussion and answer any questions. Distribute the Handout to participants.
Step 2 – Movie and discussion – 20 minutes
Ø Watch the “Hometown Fellows” movie.
Ø Ask participants to share how they feel about the movie. Try to elicit some positive and negative responses, but do not push it. There are no right or wrong responses. Ensure respect for and between people with different views.
After a few responses ask them what are the key learning points of the movie. Take a few comments from the participants and facilitate the discussion by encouraging them to comment also on each other’s views.
84 The “Hometown fellows” movie was produced in 2008 by the ILO HIV/AIDS Workplace Education Programme in China implemented in collaboration with the Ministry of Human Resources and Social Security (MOHRSS), China and the Chinese Employers Confederation (CEC).
95 Equality and non-discrimination at work in Cambodia: Manual Exercise 13
Ø When no new points of discussion are emerging, conclude that the film presents three points that are very important for combating discrimination on the grounds of HIV: 1. There is no need to fear HIV transmission in the workplace, because HIV cannot be transferred through casual everyday contact, such as touching, sharing food, washing face, etc. HIV is transferred only through unprotected sexual intercourse with an infected partner and transfusion or other exchange of infected blood. People living with HIV are productive members of the workforce. Thanks to the increasing availability of antiretroviral therapy HIV-positive persons often have minimal or no loss of functional capacity and can continue to contribute in the labour market. They may not experience any symptoms and are able to live healthy and productive lives over an extended period of time. 2. One of the harshest kinds of discrimination against persons living with HIV is “freezing out” by fellow workers. The reason for rejection by co-workers at the workplace is based on fear about the infection, prejudice and poor understanding of the transmission routes of HIV.
Ø Emphasize that dissemination of correct information about transmission and non- transmission routes of HIV is key to dissolving fear and fighting stigma and discrimination of workers with infectious diseases.
Ø There are about 56,000 persons living with HIV and AIDS in Cambodia.85UN human rights bodies have noted with concern that in recent years the number of women being infected by their partners is increasing. In 2006 women constituted already 52 per cent of persons living with HIV in Cambodia.86Discrimination against persons living with HIV and AIDS in employment is prohibited in the Cambodian Law on the Prevention and Control of HIV/AIDS(2002) and the ILO Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200).
Ø Close the discussion by reminding that HBV infection can be effectively prevented through vaccination. While there is no cure for HIV, antiretroviral therapy has changed the prognosis of patients with HIV infection. Voluntary HIV testing and counseling should be encouraged and supported, as early detection can assist in the effectiveness of treatment.
85 UNAIDS: Report on the global AIDS epidemic (2010). 86 Committee on Economic, Social and Cultural Rights (CESCR). 2009. Concluding observations of the Committee on Economic, Social and Cultural Rights: Cambodia, E/C.12/KHM/CO/1.
96 II. Exercises 2. Exercises to initiate discussion on discrimination Exercise 13
Exercise 13. Quiz and discussion on HIV
Handout. Responses87
1. No, HIV cannot be transmitted through shaking hands or touching somebody. 2. Yes, HIV can be transmitted through unprotected sexual intercourse with an infected partner. This can be prevented by using a condom. 3. No, HIV cannot be transmitted by using the same phone or other equipment at the workplace. HIV is unable to reproduce or survive in the open air, and this makes environmental transmission impossible. 4. No, HIV cannot be transmitted through open mouth kissing, unless both partners have large open sores in their mouths or severely bleeding gums. Saliva does contain the virus, but it is only present in very small quantities and as such cannot cause infection. 5. Yes, transfusion of infected blood can cause HIV infection. Nowadays, in East and South-East Asian countries most of the blood used for transfusions is tested for HIV. 6. No, HIV cannot be transmitted through mosquito bites. Even if the virus enters a mosquito or another sucking or biting insect, the insect does not become infected and cannot transmit HIV to the next human it feeds on or bites. 7. Yes, sharing infected injecting equipment is a very efficient way to transmit HIV. Injecting drug users are a high-risk group for exposure to HIV and other blood- borne viruses. Injecting with a sterile needle will not transmit HIV as long as clean equipment is used each time and none of it is shared. 8. No, HIV cannot be transmitted by using the same toilet with infected persons. (See point 3 above.) 9. No, HIV cannot be transmitted by using the same cutlery or eating together with an infected person. (See point 3 above.) 10. No, HIV cannot be transmitted by hugging or touching. Healthy, intact skin does not allow the virus to get into the body. 11. No, HIV cannot be transmitted by working together with an infected person. The virus cannot reproduce or survive in the open air and for this reason cannot be transmitted through spitting, sneezing or using the same equipment. (See point 3 above.) 12. Yes, an infected pregnant woman can pass HIV on to her unborn baby during pregnancy, labour and delivery. The virus can also be transmitted through breastfeeding. If a woman knows she is infected with HIV, there are drugs she can take to greatly reduce the chance of her child becoming infected. 13. No, HIV cannot be transmitted by using the same tableware or eating with an infected person. (See point 3 above.)
87 AVERT: Can you get HIV on...?, http://www.avert.org (accessed 27 Sep. 2010); How HBV is transmitted?, http://www.liverdisease.com (accessed 27 Sep. 2010).
97 Equality and non-discrimination at work in Cambodia: Manual Exercise 14
3. Exercises to discuss key concepts in relation to discrimination
3.1 Types of discrimination
Exercise 14. What type of discrimination is it?
Instructions for trainers
Aim - To understand the concepts of direct and indirect discrimination in law and in practice and distinguish between grounds of discrimination that are and are not prohibited in international and/or national law.
Time – 60 minutes.
Training materials and preparation – Make a copy of Handout 1 and cut out the examples, or write the examples on coloured paper slips. Shuffle and mix the paper slips. Draw a matrix with four empty fields on a flipchart as indicated in Handout 2.
Steps.
Ø Share the aims of the exercise with the participants and divide them into groups of three to six persons. Distribute a few paper slips with examples of different forms of discrimination to each of the groups. Ask the groups to discuss what type of discrimination the examples represent (direct - indirect, in law - in practice) and prepare to paste their examples in the matrix on the flipchart.
Ø After the groups have finished the discussion, ask the group representatives to introduce the examples given to them and to paste them in the right place on the matrix for everybody to see. Discuss each example one by one using the explanation given in Handout 2 as needed.
Ø In the roundup, explain that many countries have made great progress in addressing direct discrimination and repealing discriminatory laws. However, in this process direct discrimination in law may turn into more subtle forms of indirect discrimination and discriminatory practices, unless careful attention is paid to recognition of these new forms of discrimination as they emerge. To eliminate discrimination it is important to be able to identify the different forms of discrimination, and to take action to repeal the more subtle forms of discrimination which may be widespread.
98 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 14
Exercise 14. What type of discrimination is it?
Handout 1. Examples
Examples of types of discrimination on the grounds prohibited in Convention No. 111
Legal provisions which stipulate that certain business start-up micro credits may only be granted to male applicants. (1)
Legal provisions requiring persons applying for business start-up loans to have a local guarantor. Entrepreneurs who have recently moved to the city from rural towns have difficulties in finding local guarantors. (2)
Legal provisions prohibiting women’s employment in certain occupations. (3)
Different salary scales for women and men doing the same work or work of equal value set in the law. (4)
Legal provisions setting unreasonable language requirements for access to civil service jobs. Admission test results show that persons belonging to a linguistic minority have difficulty in passing the language test. (5)
Legal regulations prohibiting employment of HIV positive persons in office jobs. (6)
Legal provisions that exclude domestic workers from labour law protection. More than 80 per cent of domestic workers are women. (7)
Job advertisements which state that only male applicants can apply. (8)
Job advertisements which set irrelevant height and weight requirements. Data on average height and weight of women and men shows that women are significantly less likely to meet the requirements. (9)
Women’s concentration in a limited range of occupations. (10)
Industry practice of paying different wages to women and men doing the same work or work of equal value. (11)
Setting different pay scales for ”surface technicians” and ”cleaners” even if the work in these two job categories is very similar and the value of their output is exactly the same. Company staff records show that all surface technicians are men and most cleaners are women. (12)
Bank loan conditions that require applicants to be a member of the dominant religion to gain access to their services. (13)
Concentration of persons with disabilities in self-employment and micro-enterprises. (14)
Bank practice of providing information on access to agricultural credit only in the majority language. It is well known that very few ethnic minority persons, especially women, engaged in agriculture can read the majority language. (15)
99 Equality and non-discrimination at work in Cambodia: Manual Exercise 14
Exercise 14. What type of discrimination is it?
Handout 2. Responses
Examples of types of discrimination on the grounds prohibited in Convention No. 111
DIRECT DISCRIMINATION INDIRECT DISCRIMINATION
Legal provisions which stipulate that Legal provisions requiring persons certain business start-up micro credits may applying for business start-up loans to only be granted to male applicants. (1) have a local guarantor. Entrepreneurs who
have recently moved to the city from rural Legal provisions prohibiting women’s towns have difficulties in finding local employment in certain occupations. (3) guarantors. (2)
Different salary scales for women and men Legal provisions setting unreasonable doing the same work or work of equal language requirements for access to civil value set in the law. (4) service jobs. Admission test results show that persons belonging to a linguistic Legal regulations prohibiting employment minority have difficulty in passing the of HIV positive persons in office jobs. (6) language test. (5)
DISCRIMINATION IN LAW IN DISCRIMINATION Legal provisions that exclude domestic workers from labour law protection. More than 80 per cent of domestic workers are women. (7)
Job advertisements which state that only Job advertisements which set irrelevant male applicants can apply. (8) height and weight requirements. Data on average height and weight of women and
Women’s concentration in a limited range men shows that women are significantly of occupations. (10) less likely to meet the requirements. (9)
Industry practice of paying different wages Setting different pay scales for ”surface to women and men doing the same work technicians” and ”cleaners” even if the or work of equal value.(11) work in these two job categories is very similar and the value of their output is Bank loan conditions that require exactly the same. Company staff records applicants to be a member of the show that all surface technicians are men dominant religion to gain access to their and most cleaners are women. (12) services. (13) Bank practice of providing information on Concentration of persons with disabilities access to agricultural credit only in the DISCRIMINATION IN PRACTICE IN DISCRIMINATION in self-employment and micro-enterprises. majority language. It is well known that (14) very few ethnic minority persons, especially women, engaged in agriculture can read the majority language. (15)
100 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 14
Detailed responses
1. This example is a clear case of direct sex discrimination in law because the law explicitly stipulates eligibility for micro-credits only to male applicants. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
2. This is an example of indirect discrimination in law based on social origin. The law does not explicitly exclude non-local entrepreneurs from eligibility to apply for the loan, but the seemingly neutral requirement of having a local guarantor makes meeting the criteria much more difficult for non-local entrepreneurs in practice. Discrimination based on social origin is prohibited in Convention No. 111 and the Cambodian Labour Law.
3. Prohibitions of women’s employment in certain occupations are often adopted as well-intended measures to protect women’s health, but may in practice lead to reduced employment opportunities for women. Such provisions are still in force in several countries in the region. However, the exclusion of women from employment opportunities constitutes discrimination on the grounds of sex which is prohibited in Convention No. 111. The United Nations treaty bodies request governments to regularly review whether such protective measures are still necessary. The international consensus is that employment restrictions for women should be exclusively related to maternity and that those which are related to stereotyped assumptions on gender roles should be repealed.
4. This is a clear example of direct sex discrimination in law because the law explicitly stipulates different pay for the same work or work of equal value for women and men. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
5. Full proficiency in a certain language (most often the official majority language of a country) can be an inherent requirement of the job in certain civil service jobs, but not in all positions. If proficiency in the official language is not a genuine inherent requirement of the job, language requirements may be viewed as discrimination against qualified ethnic minority applicants, whose command of the majority language may be less complete than the majority population. In this case the unreasonable language requirements constitute indirect discrimination in law based on ethnicity. If the national law prohibits discrimination based on language, these requirements can be seen as direct discrimination in law based on language. In Cambodia, rejected ethnic minority applicants could either claim indirect discrimination on the ground of ethnicity or direct discrimination on the ground of language. Discrimination based on ethnicity or race is prohibited in Convention No. 111 and the Cambodian Labour Law. Discrimination on the grounds of language is prohibited in the Cambodian Constitution, which however does not define any sanctions.
6. This is a clear example of direct discrimination in law based on HIV status. HIV infection cannot be transmitted in regular workplace contact in office work, so there is no justification for exclusion of HIV positive persons in these kinds of jobs. Discrimination based on HIV status is prohibited in the Cambodian Law on the Prevention and Control of HIV/AIDS.
101 Equality and non-discrimination at work in Cambodia: Manual Exercise 14
7. This is an example of indirect discrimination in law based on sex. The decision made by the legislator to exclude the occupational group of domestic workers from protection under the labour law disadvantages this large group of workers who are mostly women. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
8. This is a clear example of direct sex discrimination in practice. The job advertisement explicitly excludes women from a job opportunity. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
9. This is an example of indirect sex discrimination in practice. The height and weight requirements included in the job advertisement are seemingly neutral, but in practice these disproportionately disadvantage female applicants who are often shorter and lighter than male applicants. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
10. All over the world, including also Cambodia, labour markets are segregated so that women are concentrated in certain jobs and men are concentrated in other jobs. In some countries this type of job segregation by sex is rigid while in others it is not so strict. Variations also exist as to what are considered typically “men’s jobs” and “women’s jobs”. Some consider that this is “natural” and not problematic. Others think that this serves to protect women from work considered “unsuitable” for them. However, evidence indicates that job segregation by sex limits the choice of occupation both for women and men, and leads to inefficiencies in labour markets. Fewer types of jobs and occupations are available to women as compared to men and due to the undervaluation of jobs done by women, the latter are often disadvantaged in terms of salary level and access to career development. This concentration of women in a limited range of occupations usually at the lower levels of the job hierarchy constitutes sex discrimination in practice. Discrimination based on sex is prohibited in Convention No. 111 and the Cambodian Labour Law.
11. This is an example of direct sex discrimination in practice. While Cambodia has made progress in addressing direct wage discrimination against women, problems remain in certain sectors. In particular, the ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) has noted that in 2009 in the Cambodian construction sector wages for men amounted to 7,000 riels per day while women earned only 5,000 riels.88 Wage discrimination based on sex is prohibited in Conventions Nos. 100 and 111 and the Cambodian Labour Law.
12. This is a clear example of indirect sex discrimination in practice. As the content of the jobs of surface technicians and cleaners is the same, they should be paid equal remuneration. Setting different pay scales for the two jobs of equal value discriminates against the cleaners who are all women, and thus constitutes indirect sex discrimination in practice. Convention No. 100 establishes the principle of equal pay for women and men for work of equal value.
13. This is an example of direct discrimination in practice based on religion. Religious belief should not be a condition for access to bank services. Discrimination on the ground of religion is prohibited in Convention No. 111 and the Cambodian Labour Law.
88 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2011).
102 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 14
14. Concentration of a certain group of workers in self-employment and micro-enterprises often indicates that these persons lack access to other types of employment. For this reason, concentration of persons with disabilities in self-employment and micro- enterprises can be seen as a sign of direct discrimination in practice based on disability. Discrimination based on disability is prohibited in the Cambodian Law on the Protection and the Promotion of the rights of Persons with Disabilities Discrimination.
15. This is an example of indirect discrimination in practice based on ethnicity. If the literary among ethnic women is lower than ethnic men, the bank practice constitutes also indirect discrimination in practice against women. If the national law prohibits discrimination based on language, this could also be considered as an example of direct discrimination in practice based on language. Discrimination based on language is prohibited in the Cambodian Constitution, whereas discrimination on the grounds of ethnicity and sex is prohibited both in the Constitution and the Cambodian Labour Law. Persons engaged in agriculture should have equal access to information and credit regardless of their ethnicity, sex or language. The ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) and UN treaty bodies have asked the Cambodian government to ensure that women have equal access to credit in agriculture.89
89 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2012, 2011); CEDAW: Concluding comments of the Committee on the Elimination of Discrimination against Women: Cambodia (2006).
103 Equality and non-discrimination at work in Cambodia: Manual Exercise 15
3.2 Inherent requirements of the job
Exercise 15. Inherent job requirement or discrimination: Case studies
Instructions for trainers
Aim – To differentiate between “inherent requirements of the job”, “direct” and “indirect discrimination”.
Time – 40 minutes.
Seating arrangement – Small group seating around tables or other seating that allows people to work in groups of three to six persons.
Steps
Ø Share the aims of the exercise with the participants.
Ø Divide participants into small groups. Distribute Handout 1 and assign each group one case for discussion. Tell each group to prepare a presentation on the case study and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask one of the groups which discussed case A to give a brief presentation on the case. Invite other participants to add, ask questions or comment on the presentation. Do the same for cases B and C. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • When making an employment decisions, it is always important to identify the inherent requirements of a job. Personal characteristics such as height, weight or HIV status should generally not impact employment decisions, except in exceptional situations in which these can be considered inherent requirements of the job. • Excessive and unnecessary lifting criteria and other types of physical recruitment criteria (e.g. height, weight) can sometimes be seen as constituting indirect sex discrimination, either against women or men. Cases A and B discuss the legitimacy of such criteria. As illustrated by these cases, if work practices and procedures can be adjusted so that the job can be performed by a woman or man not fulfilling the physical criteria, these criteria are discriminatory and should be lifted. • Gender equality at work requires that women and men shall have equal access to training and employment of their own choice, on the basis of individual suitability for such training or employment. Traditional ideas about suitability of certain jobs to women and men should not interfere in the choice made by an individual. For this purpose the suitability for specific jobs should not be assessed with reference to stereotypical assumptions on women as weak and men as strong, but with
104 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 15
reference to the individual characteristic of the person and the inherent requirements of the job in question. • Case C discusses whether absence of HIV infection can be considered an inherent requirement of some jobs. As the case illustrates, absence of HIV infection can legitimately required only in very few jobs involving blood and sharp objects, for example, surgery in the health care sector. • People living with HIV face stigma and discrimination in the labour market and in society. Much of this stigma and discrimination is based on wrong beliefs and misinformation about the nature of the infection and its transmission routes. • Tackling discrimination on the grounds of HIV is an important labour market issue. In 2009, more than 2 million working age persons were living with HIV in East and South-East Asia, and 56,000 of them lived in Cambodia. (See Table below.) Ensuring that these persons can fully participate in the labour market and contribute their talent is crucial for these individuals as well as for the society and economy as a whole.
& For further discussion on reasonable accommodation see Exercise 18. Reasonable accommodation.
& To discuss transmission routes of HIV see Exercise 13. Quiz and Discussion on HIV.
Table. Estimated working age people living with HIV/AIDS in East and South-East Asian countries (15+ years) Country Cambodia 56,000 China 730,000 Indonesia 300,000 Japan 8,100 Korea 9,500 Lao PDR 8,300 Malaysia 100,000 Philippines 8,600 Singapore 3,300 Thailand 520,000 Viet Nam 270,000 Total 2,013,800 Source: UNAIDS: Report on the global AIDS epidemic (2010).
105 Equality and non-discrimination at work in Cambodia: Manual Exercise 15
Exercise 15. Inherent job requirement or discrimination: Case studies
Handout 1. Case studies
Case A. Physical recruitment criteria
A Canadian school required applicants for a part-time cleaner position to meet a set of detailed physical criteria. The physical criteria included fifty-pound (23 kilograms) floor-to-shoulder lifting. A female applicant claimed that this lifting requirement constituted discrimination of female candidates. The school responded that the work of cleaners in the school premises required lifting and stacking heavy boxes of photocopy paper and big bottles of floor cleanser and wax, and for this reason the lifting requirement was justified.
Questions for discussion: 1. How would you decide this case if you were the judge hearing it? 2. Is this discrimination? If so, what type of discrimination? 3. What information would you collect to establish whether the criteria set by the school were discriminatory or not?
Case B. Height as a job factor in the UK
Ben Sargeaunt-Thomson, a six feet and ten inches (208 cm) tall 23-year-old physics graduate, was offered a position as a trainee air traffic controller for the UK National Air Traffic Services (NATS) in 2003. However, because of concerns on account of Mr Sargeaunt- Thomson’s height, he was asked to undergo a display screen equipment assessment before commencing the training course. The workstations used by air traffic controllers were designed to accommodate 90 per cent of male and female height ranges, with an upper limit of around six feet and one inch (185 cm).
Following the display screen equipment assessment, NATS informed Mr Sargeaunt-Thomson that it would be dangerous for him to sit for any length of time at one of the workstations as it would be uncomfortable and he could develop joint and circulation problems as a result. In addition, his concentration could be affected by the discomfort and this in turn could put others at risk. Practical solutions to the problem were sought, but adaptations to the workstations were not possible as these were set up as a bank of connected desks which could not be adjusted. Also, each workstation was used by a number of different operatives in any 24-hour period. As a result, NATS withdrew its offer of employment to Mr Sargeaunt- Thomson. Mr Sargeaunt-Thomson took his case to the Employment Tribunal (ET), claiming indirect sex discrimination because only a man would be so tall that he could not sit at the workstations used by air traffic controllers.
Questions for discussion: 1. How would you decide this case if you were the tribunal judge hearing it? 2. Is this discrimination? If so, what type of discrimination? 3. What information would you collect to establish whether the criteria set by the NATS were discriminatory or not?
106 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 15
Case C. Mr Hoffmann and South African Airlines
Mr Hoffman applied in September 1996 for employment as a cabin attendant with South African Airlines (SAA). He went through a four-stage selection process comprising a pre- screening interview, psychometric tests, a formal interview and a final screening process involving a role-play. At the end of the selection process, the appellant, together with eleven others, was found to be a suitable candidate for employment. This decision, however, was subject to a pre-employment medical examination, which included a blood test for HIV/AIDS. The medical examination found him to be clinically fit and, thus, suitable for employment. However, the blood test showed that he was HIV positive. As a result, the medical report was altered to read that the appellant was “HIV positive” and therefore “unsuitable”. He was subsequently informed that he could not be employed as a cabin attendant in view of his HIV positive status.
Mr Hoffman challenged the constitutionality of the refusal to employ him in the Constitutional Court, alleging that the refusal constituted unfair discrimination, and violated his constitutional right to equality, human dignity and fair labour practices. He sought an order directing SAA to employ him as a cabin attendant.
SAA denied the charge. It asserted that the exclusion of the appellant from employment had been dictated by its employment practice, which required the exclusion of all persons who were HIV positive from employment as cabin attendant. SAA justified this practice on safety, medical and operational grounds. It added that people who are HIV positive are prone to contracting opportunistic diseases. Therefore they might contract these diseases and transmit them to others. SAA emphasized that its practice was not only directed at detecting HIV, but detecting all kinds of disability that make an individual unsuitable for employment as flight crew, such as epilepsy, impaired vision and deafness. SAA added that the life expectancy of people who are HIV positive was too short to warrant the costs of training them. It further stated that harm would be done to its commercial interests if it were known that HIV positive people were in its employ.
Questions for discussion: 1. How should the Constitutional Court rule in this case? Do you think Mr Hoffmann was discriminated on the grounds of his health status or not? 2. Analyze the different arguments presented by SAA. Do you think SAA had a legitimate reason not to hire Mr Hoffmann? 3. If a similar case would take place in Cambodia which laws would apply? What would be the outcome in a national court or the Arbitration Council?
107 Equality and non-discrimination at work in Cambodia: Manual Exercise 15
Exercise 15. Inherent job requirement or discrimination: Case studies
Handout 2. Case Responses
Case A. Physical recruitment criteria
This case example is a real-life arbitration case from Canada.90 It is a good example on the kind of research and comparative testing that arbitrators or judges may need to undertake in order to establish whether the recruitment criteria applied by employers involve discrimination or not. In this case the analysis completed by the arbitrator had two steps:
First, the arbitrator did empirical tests on the lifting capacity of men and women. The test found that 100 per cent of the 258 tested 18-30 year old men could lift fifty-pound floor-to- waist and floor-to-shoulder. Among the 315 tested 18-30 year old women 98 per cent could lift fifty-pound floor-to-waist and only 27 per cent could lift fifty-pound floor-to-shoulder. The test thus showed that women’s pass ratio was 80 per cent less than men’s pass ratio. Based on this evidence the arbitrator concluded that the claimants had established a (prima facie91) case of indirect sex discrimination.
Second, the arbitrator analyzed whether the 50 pound lifting requirement was an inherent requirement of the job. The arbitrator noticed that the lifting requirement derived from the employer’s observation of how a male cleaner performed the job. When a male cleaner performed the job, he stacked 22kg-pails containing five gallon floor cleanser and wax containers up to three pails height, and stacked 22kg-boxes with photocopy paper into the storeroom up to five boxes height. The employer therefore considered lifting to a specific height as an occasional demand of this job.
The arbitrator indicated that to prove that the lifting requirement is reasonable and necessary, the employer must show that the work of the cleaners could not be reasonably rearranged so that also women with less lifting capacity could undertake the key tasks. The tests conducted by the arbitrator showed that the work could be completed safely and efficiently by splitting boxes of photocopy paper before transporting them. Furthermore, the lifting requirement could be reduced to twenty-five pounds or less by taking the following measures: (1) ordering supplies in smaller containers; (2) changing the pile pattern in the storeroom, (3) ordering fewer supplies to decrease the stack height; or (4) arrange for heavier supplies to be lifted or lowered by other staff members.
The employer defended that splitting boxes of photocopy paper doubles the time for transporting and that ordering supplies in smaller containers or ordering fewer supplies increases transporting times and further increases the cost. In addition, changing the pile pattern in the storeroom occupies time which otherwise could be used for other tasks. The arbitrator rejected the employer’s claims stating that they did not reasonably prove that the change in work practices would constitute an undue hardship for the employer.
90 Arbitration decision in the case Canadian Union of Public Employers (CUPE) Local 4400 v. Toronto District School Board, (Burlington, Ontario, 4 September 2003). 91 Prima facie is a legal term referring to the reversal of the burden of proof. In several jurisdictions, once the complainant or alleged victim has provided evidence of differential treatment, the employer has the burden of proving that his or her actions are not discriminatory but based on objective reasons. See Section 3.3.2 for more information.
108 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 15
Based on the above analysis the arbitrator decided that the work could be satisfactorily performed without the ability to lift fifty-pound boxes floor-to-shoulder. Consequently the lifting requirement was found to be unlawful discrimination against female applicants.
Case B. Height as a job factor in the UK
This is a real-life employment tribunal case from the United Kingdom.92 In the actual case the Employment Tribunal found that the NATS had a justified reason to require Mr Sargeaunt-Thomson take the display screen equipment assessment when it considered that there could be a risk to health and safety in operating the equipment, particularly given the safety-critical nature of the business. The tribunal also noted that NATS had in the past hired trainees who were six feet and nine inches (205 cm) and six feet and six inches (198 cm) tall, so the company had not applied a blanket ban on height. The NATS had sought practical solutions to accommodate Mr Sargeaunt-Thomson height, but these were found to be impossible. Therefore the tribunal concluded that the withdrawal of the offer of employment to Mr Sargeaunt-Thomson was not discrimination: in this case height could be considered an inherent requirement of the job. The tribunal, however, welcomed the NATS’ plan to invest in adaptable workstations in 2012.
Case C. Mr Hoffman and South African Airlines
The case is a real-life case from the South African Constitutional Court.93 The Court found that Mr Hoffman had been discriminated on the grounds of his HIV status and ordered South African Airlines (SAA) to employ him as cabin attendant.
The Court reasoned in the following way: “An asymptomatic HIV positive person can perform the work of a cabin attendant competently. Any hazards to which an immunocompetent cabin attendant may be exposed can be managed by counselling, monitoring, vaccination and the administration of the appropriate antibiotic prophylaxis if necessary. Similarly, the risks to passengers and other third parties arising from an asymptomatic HIV positive cabin crew member are therefore inconsequential and, if necessary, well- established universal precautions can be utilized”.
The judgement by the Court highlights the important point that absence of an infectious disease such as HIV is an inherent job requirement only in those very limited jobs that involve a high risk of transmission (e.g. surgeons, anaesthetists). In other jobs the risks can be well managed through adequate standard measures of universal precaution. Universal precautions refer to simple infection control practices to be used to minimize the risk of blood-borne pathogens. The ILO Code of Practice on HIV/AIDS and the world of work (2001) requires employers to ensure that in workplaces where workers come into regular contact with human blood and body fluids all workers know the procedures to be followed in the event of an occupational incident and that universal precautions are always observed.
Concerning SAA’s allegations that hiring HV positive persons would harm its public image and favour its competitors, the Court added:
92 BP Collins Solicitors: “Too tall for air traffic control job”, in Employment insight, Issue No. 4 (2006). http://www.bpcollins.co.uk (accessed 16 Sep. 2010). 93 South Africa, Constitutional Court: Hoffmann v South African Airways (CCT 17/00) (28 Sep. 2000); M. Chartier: Legal initiatives to address HIV/AIDS in the world of work by the ILO Programme on HIV/AIDS and the World of Work, (Geneva, ILO, 2005).
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“Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalized, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected”.
The Constitution of South Africa, which prohibits unfair discrimination, does not expressly mention HIV status. Nevertheless, the Court held that unfairly discriminating against employees on the basis of their HIV status amounts to a violation of their right to dignity.
This case was significant because it was the first Constitutional Court case on the issue of HIV/AIDS discrimination in the workplace heard in South Africa. Due to the HIV infection level of over 20 per cent HIV is a very important labour market issue in South Africa.
HIV is an important labour market issue also in Cambodia, which has a population of 56,000 persons living with HIV.94 The Law on the Prevention and Control of HIV/AIDS (2002) prohibits discrimination in hiring, promotion, assignment of work, or termination of employment based on the actual, perceived or suspected HIV/AIDS status of an individual or his or her family members (Article 36). Discrimination against persons living with HIV and AIDS is also prohibited in education and in access to credit and loan services (Articles 37, 40). In addition, the law prohibits compulsory HIV testing and protects confidentiality of health information of persons living with HIV and AIDS (Articles 20, 33). Penalties for violating the above provisions range from a fine to imprisonment of one to six months (Articles 51-52).
94 UNAIDS: Report on the global AIDS epidemic (2010).
110 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 16
3.3 Approaches and strategies for achieving substantive equality
Exercise 16. Protection and equality: Case study
Instructions for trainers
Aim – To distinguish between protection (“protective equality”) and equality of employment outcomes (“substantive equality”), and assess how they impact on employment outcomes for women.
Time – 30-40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – One sheet of flipchart paper and one marker pen for each group. Select the relevant case study/ies for the participants before the session.
Steps.
Ø Share the aims of the exercise with participants. Divide them into small groups and distribute Handout 1. Ask the groups to read the case study and discuss.
Ø Reconvene in plenary when the groups are ready. Ask the groups to present their case and the outcome of their discussion. After the presentations invite other participants to ask questions or comment. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses.
Ø Roundup the discussion as follows: • Blanket protection measures are defended by some as necessary for women workers, and criticized by others because they are contrary to gender equality goals and disadvantageous to women’s employment and promotion prospects. However, there is overall consensus about the need to protect the safety of all workers, including the reproductive functions of women and men, and the health of woman and child during pregnancy and breastfeeding. • Blanket protection measures for women only run the risk of perpetuating stereotypical ideas of women and men, and they often make women workers more expensive. This, in turn, can lead to decreasing women’s access to employment or lower wages for women. Therefore, evidence needs to be sought to justify the need for protective measures and analyze their actual effect on equality promotion. • Women and men have an equal right to employment and to safe and healthy working conditions. For this reason, it is essential to safeguard access to equal job opportunities and at the same time enforce (minimum) decent work standards for both sexes.
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Exercise 16. Protection and equality: Case study
Handout 1. Case
Night work by women in France
A French company fell into economic difficulties in 1988, and needed to reorganize production. The enterprise considered laying off about 200 people at one of its plants. However, having calculated that the number and the effects of redundancies could be limited if a continuous shift-work system were adopted, involving night work for the entire workforce, it undertook negotiations with the unions. This led to an agreement whereby night-work jobs were offered to all the staff, including women.
In view of the fact that the female workers in the company had the necessary skills for the posts that had been retained, the parties, wishing to ensure that women were given the same opportunities as men, agreed to make all posts available to both men and women, subject to approval by a majority vote of the female workers. A majority voted in favour of the shift-work system, and it was introduced with effect from 1 October 1988.
At that time the French law prohibited night work by women in industry, and breaching the law was a criminal offence. The director of the company, Alfred Stockel, was thus taken to the Police Tribunal. In the court Mr Stockel admitted that he had breached the national law in France, but contended that this law was contrary to the law of the European Community (EC) on equal treatment of women and men in employment. Namely, EC Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards to employment, vocational training and promotion required EC member States to take all the necessary measures to eliminate inequalities in employment and working conditions. In these circumstances the French Court stayed the proceedings and referred the case to the European Court of Justice for a preliminary ruling on the interpretation of EC law.
Questions for discussion: 1. How would you decide this case if you were the judge in the European Court of Justice hearing it? 2. Discuss the arguments in favour and against protection (“protective equality”) and equality of employment outcomes (“substantive equality”) in your group. 3. Does Cambodia have laws or policies restricting women’s employment in certain occupations or working conditions? What is the impact of these laws or policies on employment outcomes of women?
112 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 16
Exercise 16. Protection and equality: Case study
Handout 2. Case responses
Night work by women in France
This case relates to an actual dispute which occurred in France in 1991.95 It illustrates the conflict of interests between “protective equality” and “substantive equality” – and why substantive equality should prevail according to the paradigm “in equality we trust, protection if we must”. While women’s health needs to be protected during special conditions such as pregnancy and breastfeeding, blanket protection measures banning women’s employment in certain occupations or types of work remove opportunities for decent work by providing a level of protection that is disproportionate to the actual protection needs. They are defended by some as necessary for women workers, and criticized by others because they are disadvantageous to women’s employment and promotion prospects. The debate usually concerns women’s employment in physically strenuous work, at heights, underground in mines and during the night.
Among East and South-East Asian countries night work by women is still formally prohibited in Malaysia (Section 34 of the Employment Act, subject to exemptions from the Director General of Labour), and in Brunei Darussalam for women below 18 years of age. In the Philippines, Congress repealed Sections 130 and 131 of the Labour Code in May 2011, which had hitherto banned night work for women except under strict government permission. At the same time, it adopted a new Labour Code Chapter on “Employment of night workers”. The new chapter provides protection to both women and men working at night, including, among others, the right to health assessment and transfer to a similar job if certified as unfit for night work. Importantly, it also requires the employer to consult workers’ representatives or labour organizations on the details of the work schedules before introducing night work.96 In Viet Nam, Section 115 of the Labour Code prohibits night work for women who are at least seven months pregnant or have a child less than 12 months old.
Advantages of blanket protection measures are that women are barred from work that is considered too dangerous or dirty for them. In the case of night work, arguments could be that it is difficult to combine this type of work with family responsibilities, or that women run the risk of sexual harassment or assault by male workers. However, the disadvantages of blanket protection measures may overall be more significant than the advantages, as protection takes the form of prohibition of women in certain jobs or work processes and perpetuates traditional stereotypes of women as weaker and less able workers. For this reason in the real-life case in France the women workers voted in favour of introduction of shift-work, which required them to work at night but helped them to save their jobs.
In its reasoning, the European Court of Justice (ECJ) stressed that the EC directive requires the abolition or revision of national provisions that are contrary to the principle of equal treatment of women and men in employment. Exceptions are valid only if there is a justified
95 “CJ Case C-345/89 Alfred Stoeckel, 25 July 1991, [1991] ECR I-4047” in A. Bronstein: International and comparative labour law: Current challenges (Geneva, 2009). 96 Republic Act No. 10151, An Act Allowing the Employment of Night Workers, Thereby Repealing Articles 130 and 131 of Presidential Decree Number Four Hundred Forty-Two, As Amended, Otherwise Known As The Labor Code Of The Philippines. http://www.gov.ph/2011/06/21/republic-act-no-1015/ (accessed 19 Oct 2011).
113 Equality and non-discrimination at work in Cambodia: Manual Exercise 16 need for a difference of treatment between women and men. The ECJ noted that with regard to the case at hand, the risks to which women are exposed when working at night, on the whole, do not seem significantly different from those to which men are exposed. On these grounds the ECJ judged that prohibition in the French law banning night work by women was not justified, and was in breach with the EC law. The ECJ noted however that special measures protecting the health of women during pregnancy and maternity are necessary and justified.
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted in its General survey on night work of women in 2001 that there is a clear tendency among ILO member States to move away from a blanket ban on night work of women in industry, to regulating night work for both men and women.
Due to changes in the roles of women in economic life and the growing need to ensure equal opportunities and treatment in employment, the International Labour Conference adopted a Protocol in 1990 substantially revising the Night Work (Women) Convention (Revised), 1948 (No. 89), as well as a new Night Work Convention, 1990 (No. 171). In adopting the Protocol to Convention No. 89 and Convention No. 171, ILO has sought to satisfy the different needs of its member States while seeking to establish working conditions for night workers that are acceptable from both a health and a social perspective.
114 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 17
Exercise 17. Affirmative action for gender and ethnic equality
Instructions for trainers
Aim – To analyze and identify how to design effective affirmative action measures.
Target group – Case A is for employers’ and workers’ representatives and other audiences interested in workplace measures to promote gender equality. Case B is for policy- makers.
Time – 45-70 minutes
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – One sheet of flipchart paper and one marker pen for each group. Select the cases that are relevant for the participants prior to the session.
Steps.
Ø Share the aim of the exercise with participants and divide them into small groups. Distribute Handout 1 to the groups, and assign each group one case. Ask them to read and discuss the case, and select a spokesperson to present the outcomes of their discussion in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask the groups to introduce their case and briefly present the outcome of their discussion. Invite other participants to ask questions or comment on each presentation. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • Affirmative action measures are temporary support measures that seek to accelerate the pace of improving the situation of groups that are at a disadvantage because of past or present discrimination. These can include, among others, targets to promote women’s or ethnic minorities’ recruitment into non-traditional sectors of employment or quotas on employment of persons with disabilities. • Affirmative action measures can be adopted as part of national or local equality or employment policy, or at workplace level in companies and public organizations. • Whether adopted at national, regional or workplace level, the key components of effective affirmative action commonly include: o Reliable evidence to determine the extent and nature of the problem. o Specific objectives concerning the group covered by the programme. o Specific measures to redress the causes of the discrimination noted. o A timetable to attain the objectives and apply the measures. o A mechanism to monitor progress, assess difficulties and make adjustments.
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• The impact of affirmative action programmes in achieving their objectives is still being debated but overall evidence points to their utility for promoting equality, even if progress is a slow and gradual process.97 • Achieving substantive equality requires joint efforts by governments, employers and trade unions to address the immediate and structural causes of discrimination against certain groups. The necessity for, and legitimacy of, affirmative action measures can be controversial, and, if implemented poorly, can backfire and result in increased gender bias, racial tension and discriminatory perceptions by the dominant, non-target group who feel they are unfairly disadvantaged. It is important, therefore, to develop and implement affirmative measures in a participatory and consultative manner involving all stakeholders. The policies should also involve a mixture of incentives and deterrents for employers. • Affirmative policies require ongoing monitoring and evaluation of their effects and regular revision and adjustment of measures to ensure the intended objectives will be achieved.
Note to trainers: When giving the roundup points, show the last slide of slide presentation 2 or 4. The cartoon picture depicting the woman and man climbing the stairs is helpful in illustrating the meaning and objectives of affirmative action measures.
97 ILO: Equality at work: The continuing challenge, Report 1(B), International Labour Conference, 100th Session, Geneva, 2011 (Geneva).
116 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 17
Exercise 17. Affirmative action for gender and ethnic equality
Handout 1. Cases
Case A. Affirmative action in Santa Clara County Transportation Agency – United States
Santa Clara County Transportation Agency (Agency) adopted an affirmative action plan for hiring and promoting minorities and women in 1978. The long-term goal of the affirmative action plan was to attain a workforce whose composition reflects the proportion of women and minorities in the local labour force. The affirmative action plan provides that the Agency is authorized to consider as one factor the sex or race of a qualified candidate when making promotions to positions where women and minorities have been significantly under- represented. The plan does not establish a specific quota for hiring or promoting women and minorities, but requires that short-range goals be established and annually adjusted to guide actual employment decisions.
In 1986 the Agency announced a vacancy for a promotional position of a road dispatcher (a skilled craft position in charge of assigning road crews, equipment and materials, and maintaining records on road maintenance jobs). Several applicants applied for the position, including Mr Johnson and Ms Joyce who both had several years of experience in working with the Agency. Mr Johnson and Ms Joyce were both deemed qualified for the job and were invited to a job interview. The two-person interview board awarded Mr Johnson a score of 75 points and Ms Joyce a score of 73 points. Eventually, pursuant to the Agency affirmative action plan the position was given to Ms Joyce. Mr Johnson felt unfairly treated and filed a case in the Federal District Court claiming that he had been discriminated against on the grounds of sex.
Questions for discussion: 1. Do you think Mr Johnson has been discriminated against? Explain. 2. What information would you collect to assess whether giving priority to Ms Joyce was justified? 3. Do you think your organization should adopt similar affirmative action measures? If yes, what kind of affirmative action measures would you recommend? If no, why not?
Case B. Affirmative action to promote gender equality in the public and private sector
Read the cases and discuss: 1. What are the objectives for adopting gender equality laws and setting targets for women’s representation in company board rooms? 2. What are arguments in favour and against these measures? 3. Do you think Cambodia should adopt similar affirmative action measures? If yes, what kind of affirmative action measures would you recommend? If no, why not?
Finland The Finnish Act on Equality between Women and Men (1987, revised in 2005) requires all private and public employers employing 30 or more employees to draw up a gender equality plan and to review it annually in cooperation with the staff. The gender equality plan is primarily concerned with pay and other terms of employment, career development of women and men, and prevention of sexual harassment. The gender equality plan must contain a
117 Equality and non-discrimination at work in Cambodia: Manual Exercise 17 gender equality assessment, clearly defined measures for improving the situation, and a review of the results of the previous year’s plan. In 2005, the obligation to conduct gender equality planning was extended to also cover educational institutions, such as upper secondary schools, vocational schools, universities, polytechnics and adult education centers.98
Mongolia The 2011 Law of Mongolia on Promotion of Gender Equality aims at ensuring equal rights, opportunities and treatment of men and women, and preventing and eliminating gender discrimination. It defines direct and indirect discrimination in line with Convention No. 111. It calls for gender mainstreaming and special measures for maternity protection and achieving equality between men and women, and sets a range of gender quota towards more equal representation of men and women in decision-making positions. In the spheres of employment and labour relations the law prohibits discrimination on the grounds of sex, pregnancy, childcare duties and family status. Employers have the responsibility to implement a plan for the promotion of gender equality at the workplace and to report on progress to employees. Job vacancy notices and advertisements should not specify or imply a preference for either sex, unless it concerns inherent job requirements or special measures to redress gender imbalances.
Viet Nam The Vietnamese Law on Gender Equality (2006) mandates the National Assembly and the Government to adopt measures to promote gender equality. The Law defines measures to promote gender equality as “measures aimed at ensuring substantive gender equality, set forth by the competent state agencies in cases there remains considerable imparity between man and woman concerning the roles, positions, conditions, and opportunities for man and woman to bring into full play their capacities and to enjoy the achievement of the development where the application of equal regulations for man and woman cannot remove this imparity. Measures to promote gender equality are to be implemented for a certain period of time and to end when the target on gender equality has been achieved” (Article 5(6)). Support measures stipulated in the law include, among others, building the capacity of female employees, giving a woman applicant priority over a male candidate in case of equal qualifications, and supporting rural women’s access to credit.
Australia In 2010, the Australian Securities Exchange (ASX) introduced a requirement for each entity listed on the ASX to adopt a diversity policy that includes self-imposed targets for staff diversity, and to publicize the proportion of women on staff, in senior ranks and on the board. Initially, the guideline will be voluntary. However, the ASX could consider making the guideline a formal listing rule if objectives are not being met. This means that ASX companies could be suspended from trade if they fail to disclose their gender policies or meet the objectives. At present, only 8.3 per cent of ASX 200 board members are women and almost 50 per cent of the top 200 companies have no women at all on their boards.99
98 The Ombudsman for Equality and Gender Equality Unit, Ministry of Social Affairs and Health (Finland): The Act on Equality between Women and Men 2005, Gender Equality Publications 2005:2 (Helsinki, 2005). Available at: http://www.stm.fi/ [9 Oct 2011]. 99 Australian Securities Exchange (ASX) Corporate Governance Council: Corporate governance principles and recommendations with 2010 amendments, http://www.asx.com.au/ (accessed 9 Oct 2011).
118 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 17
Norway, France, Germany and Spain In Norway, laws require public or publicly traded companies to have a gender balance of at least 40 per cent of women in the boards since 2004 and 2006 respectively.100 The French parliament gave final approval to a law obliging large companies to reserve at least 40 per cent of their boardroom positions for women within six years in January 2011.101 Since 2007, similar legal measures have been adopted in Germany and in Spain, and by the European Union Commission.102
The ILO Policy on Gender Equality and Gender Mainstreaming In 1999 the ILO adopted a Policy on Gender Equality and Gender Mainstreaming in the International Labour Office. One of the key aims of this policy was to reach parity of women and men in professional positions. In 1980 women constituted only 15 per cent of ILO officials in professional positions and in 1991 this ratio stood at 23 per cent. In 1999 women constituted 31 per cent of officials in professional positions, but the ILO was still among the poorer performers in gender parity in the UN system. By 2010, 42.5 per cent of professional and higher category positions were held by women and the aim is to reach gender parity in these positions by 2015.103
100 Norway, Ministry of Children, Equality and Social Inclusion: Rules on gender representation on company boards. 101 “France sets quota for women on big companies' boards”, Reuters, 13 jan. 2011. Available at: http:// www.reuters.com (accessed 26 Jan. 2011). 102 ILO: Equality at work: The continuing challenge, Report 1(B), International Labour Conference, 100th Session, Geneva, 2011 (Geneva). 103 ILO: Action Plan for Gender Equality 2010-2015 (Geneva, 2010); ILO: Statement by MrJuan Somavia, Director General of the International Labour Office on the occasion of International Women's Day (Geneva, 1999); ILO: Gender equality and mainstreaming in the ILO Office, Circular No. 564 (Geneva, 1999).
119 Equality and non-discrimination at work in Cambodia: Manual Exercise 17
Exercise 17. Affirmative action for gender and ethnic equality
Handout 2. Case responses
Case A. Affirmative action in Santa Clara County Transportation Agency – United States
This is a real-life case from the United States.104 In the actual case the Federal District Court ruled in favour of Mr Johnson stating that the Agency affirmative action plan was invalid, but the Court of Appeals and the United States Supreme Court reversed this judgment. The Supreme Court ruled that it was appropriate for the Agency to take into account the sex of Ms Joyce as one factor in determining that she should be promoted to the road dispatcher position, and thus ruled against Mr Johnson.
When assessing whether passing over a male candidate to promote the qualified female candidate in the case of Ms Joyce was legitimate, the Supreme Court looked at detailed information concerning the workforce demographics in the Agency. It found that women were under-represented in the Agency workforce as a whole (22.4 per cent), and were concentrated in only a few job categories traditionally held by women. Women made up 76 per cent of office and clerical workers, but only 7.1 per cent of officials and administrators, 8.6 per cent of professionals, 9.7 per cent of technicians, and 22 per cent of service and maintenance workers. None of the 238 skilled craft positions – the job classification to which road dispatchers belong – was held by women. Noting this manifest gender imbalance and the objectives of the affirmative action plan, the Supreme Court judged that the Agency’s decision to pass over Mr Johnson and promote Ms Joyce was legitimate.
The Supreme Court further noted that the Agency’s affirmative action plan cannot be considered as unnecessarily trammeling the rights of male employees or creating an absolute bar to their advancement. The sex of the applicants is but one factor that is taken into account in evaluating qualified applicants for a position (a “plus” in the applicant’s file), but female candidates still need to compete on merit with the other applicants.
Case B. Affirmative action to promote gender equality in the public and private sector
International and national experience shows clearly that prohibition of gender based discrimination is not sufficient in and of itself to eliminate discrimination against women in employment and occupation. Therefore, affirmative action measures to improve the status of women in the labour market constitute an important part of a national gender equality policy.
The basic obligation of employers established in national non-discrimination law is not to discriminate in their human resource practices. In addition to this “negative obligation” not to discriminate, many countries have passed legislation to establish “positive obligations” for employers to promote gender equality in their organization. These positive obligations may include, among others, an obligation to draw up a gender equality plan or to adopt and implement an equality policy. Many countries have also established compulsory or voluntary targets or quotas for women’s representation in senior management positions and on company boards.
104 United States Supreme Court: Decision (480 U.S. 616) Johnson v. Transport Agency (1987), http://laws.findlaw.com/us/480/616.html (accessed 18 Oct 2011).
120 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 17
The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on Elimination of Discrimination against Women (CEDAW) have noted that the use of affirmative measures is still inadequate in many Asian countries. For example, the CEDAW has urged the governments in Cambodia, Lao PDR, Thailand and Viet Nam to adopt affirmative action policies to accelerate achievement of de facto equality for women and men in the society and the labour market.105
105 ILO Committee on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to the Philippines (Geneva, 2009); CEDAW: Concluding comments of the Committee on Elimination of Discrimination against Women: Cambodia (2006), Lao PDR (2005), Thailand (2006) and Viet Nam (2007) (Geneva).
121 Equality and non-discrimination at work in Cambodia: Manual Exercise 18
Exercise 18. Reasonable accommodation: Case studies
Instructions for trainers
Aim – To identify how employers can provide for reasonable accommodation to avoid discrimination and promote equality for persons with disabilities or persons with religious requirements at work.
Target group – Employers’ and workers’ representatives and other audiences interested in practical workplace measures to promote equality.
Time – 40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups ofthree to six persons.
Training materials and preparation – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise and distribute Handout 1 to participants. Divide participants into small groups and instruct some of the groups to discuss case A and some to discuss case B. Tell each group to prepare a presentation on the case study and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a brief presentation on their case. Invite other participants to ask questions or comment on the presentation and facilitate discussion. Add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responsesas needed.
Ø Roundup the discussion as follows: • Reasonable accommodation measures such as practical modifications and adjustments in work practices and equipment are important strategies in promoting equal opportunity and treatment in employment for persons with disabilities or persons with other types of special requirements related for example to their religion. • Provision of reasonable accommodation to persons with disabilities is a good employment practice, and efforts to further adopt such measures should be promoted both in public and private sector workplaces in East and South-East Asian countries. Providing reasonable accommodation to persons with disabilities is a legal obligation for employers under Article 38 of the Cambodian Law on the Protection of the Rights of Persons with Disabilities (2009). Also the UN Convention on the Rights of Persons with Disabilities, which Cambodia signed in 2007, urges ratifying States to ensure that reasonable accommodation is provided to persons with disabilities in education and in employment. The Convention recognizes denial to provide reasonable accommodation as discrimination on the basis of disability.
122 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 18
• Workers’ specific religious requirements are also often best accommodated through practical measures at the workplace. These measures are often easy and inexpensive, so employers and workers should work together to find applicable solutions. • Employers’ organizations, trade unions, disabled persons’ organizations and religious associations can play an important role in promoting the adoption of these measures in enterprises and sharing good practice examples among companies and workers.
123 Equality and non-discrimination at work in Cambodia: Manual Exercise 18
Exercise 18. Reasonable accommodation: Case studies
Handout 1. Cases
Case A. The disabled radio announcer’s job application – China
A supermarket chain opened a store in Xining, Qinghai Province, China. As the Guidelines for the Implementation of the Law on Disabled Persons in Qinghai Province set a percentage for the employment of persons with disabilities in every enterprise, the Provincial Disabled Persons' Federation recommended three persons with disabilities who were trained by the vocational training institution for persons with disabilities. Two were accepted by the supermarket. The third was a young woman who had to walk with crutches. She applied for the radio announcer's post in the store. Her voice was very suitable for the post. However, the company refused to recruit her because the path to the broadcasting studio was too narrow to allow her to pass with her crutches, although the woman's family pleaded that they could carry her in and out of the studio every day. The woman had always been an active youth member of the local Disabled Person's Association. She discussed her situation with the Association and asked them to take action with the supermarket management and/or use this case to promote the employment of persons with disabilities.
Questions for discussion: 1. Was the young woman discriminated on the grounds of disability? 2. What should the Association do to solve the situation? List arguments and methods. 3. What legal remedies are available in Cambodia for seeking redress in these kinds of cases? Which laws apply?
Case B. Right to wear a beard – Kazakhstan
Mr Kyrkymbai had been employed as a shop foreman at an oil and gas production division of China’s Sinopec concession in Kazakhstan since 1999. Kazakhstan declares itself a secular state in its Constitution. In 2006 Mr Kyrkymbai converted to Islam and grew a beard. This caused him some problems at the workplace. Workers in the department where Mr Kyrkymbai worked were required to have gas masks available for emergencies, and, when an emergency occurs, wear them on pain of disciplinary sanctions (including dismissal) as per occupational safety and health arrangements. However, standard gas masks weren’t designed for men with beards. The Chinese managers refused to buy Mr Kyrkymbai a special gas mask suitable for bearded men, and dismissed Mr Kyrkymbai from his job in November 2008. Mr Kyrkymbai filed a lawsuit for discrimination.
Questions for discussion: 1. On what ground did Mr Kyrkymbai think he was discriminated against? Would that be direct or indirect discrimination? 2. What could the employer have done to prevent discrimination? Is it reasonable to expect the employer to accommodate the worker in this case?
124 II. Exercises 3. Exercises to discuss key concepts in relation to discrimination Exercise 18
Exercise 18. Reasonable accommodation: Case studies
Handout 2. Case Responses
Case A. The disabled radio announcer’s job application – China
The case illustrates discrimination on the basis of disability, and the importance of reasonable accommodation measures in ensuring equal access to employment for persons with disabilities. This is a real life case from China whose outcome is not yet known.
Reasonable accommodation refers to “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.106 At the workplace reasonable accommodation may mean changing office space, equipment, working time or other work arrangements so that a worker with special needs can perform the job. Accommodating special needs of a worker is a good employer practice, and an employer obligation to provide reasonable accommodation to persons with disabilities and health conditions has been included in national non-discrimination legislation in many countries.
The employer can refuse accommodating the needs of an employee only if this would impose undue hardship on his/her business. The failure to provide reasonable accommodation constitutes discrimination. With reference to the reasonable accommodation principle, the employer’s action in this case is discriminatory. The company should have accommodated the needs of the disabled worker by letting the family members carry the woman to and from the studio or by widening the corridor to allow her to use her crutches. Neither one of these measures would have imposed undue hardship to the employer’s business.
In Cambodia, the Law on the Protection and the Promotion of the Rights of Persons with Disabilities (2009) requires employers to provide reasonable accommodation for persons with disabilities who apply for employment as workers, employees, apprentices or interns, except when such accommodation constitutes an excessive burden (Article 38). The law also established the Persons with Disabilities Fund for the purpose of, among others, providing loans and credits for reasonable accommodation (Article 46). The fund is partially financed from the charges levied from legal entities who are not able to fulfill the legal quota for employment of persons with disabilities (Articles 37, 48). Employers should be encouraged to apply for financial support for reasonable accommodation to promote equal employment opportunity for persons with disabilities.
Many other countries in the East and South-East Asian region have also adopted legislation prohibiting discrimination on the grounds of disability and promoting employment of persons with disabilities. Workplace accommodation and accessibility measures are implemented in Japan and Thailand, and financial incentives to compensate employers for any financial burden due to employment of workers with disabilities are provided in many countries – including tax reductions in China and Singapore, and financial support for training in Japan and Thailand. Provisions requiring enterprises or categories of enterprises to hire a certain percentage of persons with disabilities (quotas) exist in China, Indonesia, Japan, Mongolia and Thailand.107
106 UN Convention on the Rights of Persons with Disabilities (Art. 2). 107 ILO: Equality at Work: Tackling the challenges (Geneva, 2007).
125 Equality and non-discrimination at work in Cambodia: Manual Exercise 18
Case B. Right to wear a beard – Kazakhstan
This is a real life case from Kazakhstan involving a local subsidiary of Sinopec Group.108 In the real case the court found that the decision to dismiss Mr Kyrkymbai was indirect discrimination on the basis of religion. The court ordered the local Sinopec division to reinstate Mr Kyrkymbai in his job and let him return to work, and to pay him the wages that were due since his unlawful dismissal. He also received US$665 in emotional damages.
Although the report published on this case does not provide full information, it can be assumed that the arguments of the claimant and the respondent during the court hearing were as follows: • The claimant (employee) argued that he had been indirectly discriminated on the grounds of religion. • The respondent (company) argued that it had no intention to discriminate, but it had strictly followed its company policy and guidelines designed to prevent accidents, injuries and diseases at work.
While the employer’s argument is legitimate – and it is indeed required to have company policies on occupational safety and health109 – the court had to weigh the two arguments against each other and see whether the safety requirements could have been met in a non- discriminatory way. Thus, the court needed to assess whether the employer could have taken any practical measures to accommodate the special religious requirements of Mr Kyrkymbai.
Reasonable accommodation of religious requirements at the workplace refers to a practical modification or adjustment to the work arrangements or environment that enables a qualified applicant or employee with special religious requirements to perform essential job functions. The obligation to provide reasonable accommodation is imposed on employers in many jurisdictions. In these jurisdictions employers can only refuse providing reasonable accommodation if this would impose a significant expense or difficulty (undue hardship). Failure to provide reasonable accommodation is considered discrimination.
In Mr Kyrkymbai’s case a practical reasonable accommodation measure would have been to purchase a gas mask that can be worn by a man with a beard. As the cost of purchasing a special gas mask cannot be very high, requiring the employer to do so cannot be considered as undue hardship. The employer’s failure to provide Mr Kyrkymbai reasonable accommodation can be considered discrimination.
108 A. Raimov: “Kazakh worker defends his right to wear a beard,” in Central Asia Online, (accessed 11 March 2009). 109 See ILO Occupational Safety and Health Convention, 1981 (No. 155).
126 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 19
4. Exercises to discuss discrimination at different stages of the employment cycle
4.1 Fair recruitment practices
Exercise 19. Writing non-discriminatory job advertisements
Instructions for trainers
Aim – To identify discrimination in job advertisements and rewrite them in a non- discriminatory manner.
Time – 40-60 minutes.
Training materials and preparation. Collect examples of discriminatory job advertisements from a local newspaper or website and select one or two of the advertisements for analysis. In case no local examples are available, select some examples from Handout 1. It is useful to select examples with proxies for desired abilities (see Step 2). In the discussion below job advertisement No. 2 is used.
Prepare two flipchart sheets before starting the exercise. Write the selected job advertisement on a flipchart in its original form (with the discriminatory criteria highlighted), and an example of the same advertisement written in a non-discriminatory manner on another flipchart to be shown at the end of the exercise. Alternatively, use the slide presentation provided for this exercise.
Steps.
Step 1 – Detecting discriminatory requirements in job advertisements – 15 minutes
Ø Introduce the aim of the exercise. Give participants copies of local job advertisements or Handout 1 with Cambodian, Chinese, Indonesian, Thai and Vietnamese examples. Point the participants to read the advertisement you have selected for analysis, e.g. No. 2 “Driver”. Ask participants to examine the job advertisement and identify which of the listed criteria are required for the job and which could be considered to be discriminatory.
Ø Discuss with the group which criteria are actually required for the job and which ones are clearly discriminatory. List them on a flipchart under the heading “non- discriminatory” and “discriminatory”.
Ø After soliciting answers from the groups, check, correct and complete the two lists on the flipchart. Show participants the flipchart sheet prepared in advance highlighting the discriminatory criteria.
127 Equality and non-discrimination at work in Cambodia: Manual Exercise 19
Job advertisement No. 2: Driver, Beijing Whosawho Culture Group – China
Requirements: 1. Age 21-24, above 175 cm. 2. Army man transferred to civilian work, Communist party member. 3. No family responsibility, can live in dormitory. 4. Healthy, can work overtime (male). 5. Over three years of safe driving experience, B type licence, familiar with roads in Beijing, strong sense of safe driving. 6. Guarantor with Beijing residency and work permit required for non- Beijing residency and work permit holders.
Ø Continue discussion with the participants on why the criteria listed as discriminatory are discriminatory. Issues to be discussed may include: • Age and sex: Only young men can apply, but why this is so, is not clear. • Health: It is discriminatory to include general statements about health. If the job in question requires specific physical abilities, such as lifting heavy loads, these should be listed as such and reasons for this requirement should be explained. • Height: There does not seem to be any justifiable reason for height requirements for this job. As mentioned above, if the job requires specific physical abilities, these should be listed as such. • Party member: Political opinion can be an inherent requirement for a high-level civil service job, but not for a job as a driver.
Step 2 – Identifying discriminatory requirements as proxies for desired abilities - 15 minutes
Ø Continue the discussion on example No. 2 “Driver” by asking participants what they think the employer had in mind when writing this job advertisement. For example, why would an employer prefer applicants who are party members? Or over 175cm tall? What was the employers’ motivation? What could be underlying reasons? Lead the participants towards realizing that in this job advertisement most of the discriminatory criteria seem to stand for, or in other words, are proxy indicators or “proxies” for certain desirable characteristics, for example: • No family responsibility: This could be a proxy for the ability to spend nights away from home, which is necessary for long distance truck drivers. • Party member: In China party membership can be seen as an indication of reliability and good character. • Tall: This could be a proxy for physical strength, ability to lift heavy loads. • Army man: This proxy may refer to ability to endure stress and physical hardship.
Ø Point out that in this job advertisement it seems that instead of describing the job requirements objectively in terms of the abilities and skills needed for the job the employer made assumptions on what kind of persons might have these abilities.
Ø Point out that from the non-discrimination point of view it is very important not to make assumptions, but to assess all applicants’ suitability for the job based on his or her individual abilities and skills. For example, while it may be very true that army men are able to endure stress, it is not fair to assume that persons who have not been in the army cannot. Also, while it is true that height may tell something about a
128 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 19
person’s physical strength, setting specific height requirements is unreasonable as there are many shorter persons who have the required physical abilities.
Ø Conclude that certain requirements listed in the job advertisements are clearly not related to the job and would exclude many good drivers. In some cases information is lacking to decide properly on whether a criterion is required for the job or not.
Step 3 – Re-writing the job advertisement (Optional – 20 minutes)
Ø Ask participants to rewrite the job advertisement, describing the skills, abilities and experience needed in the job in a non-discriminatory way. Emphasize that the job advertisements should include a job description stating the job contents and key tasks. The requirements should reflect the actual job contents and be written in an objective manner.
Ø Show participants the flipchart prepared in advance with the job advertisement written in a non-discriminatory manner. Ask a volunteer to read the rewritten job advertisement aloud. Invite participants to share their comments on the rewritten job advertisement, and facilitate further discussion.
Job advertisement No.2: Driver, Beijing Whosawho Culture Group – China
Job description: Driver needed to dispatch and deliver orders in Beijing and all over China. The job requires ability to lift heavy weights (up to 30 kg) and to work flexible hours. The work involves spending 10-15 nights away from Beijing every month.
Requirements: 1. B type driving licence; over three years of safe driving experience and strong sense of safe driving. 2. Familiar with roads of Beijing. 3. Ability to lift heavy weights and to endure stress related to long shifts and night work. 4. Strong personal integrity and professional attitude. 5. All applicants are required to provide one reference.
Step 4 – Roundup
Ø Conclude with the key learning points: • Employers can set selection criteria for the skills, qualifications and ability, effort, responsibility and working conditions required for a job, and can choose the applicants who are most suitable and qualified for the job. • Employers should not discriminate, by excluding possible applicants on the basis of assumptions about personal characteristics that are not job-related.
129 Equality and non-discrimination at work in Cambodia: Manual Exercise 19
Exercise 19. Writing non-discriminatory job advertisements
Handout 1. Sample job advertisements
1. Hostess, NagaWorld Limited (Cambodia)
NagaWorld Limited is looking for qualified candidates to fill positions of Hostess (11 posts) Duties: • Provide standard and excellent service to customers. • Provide and introduce new/old menu to the guests. • Other tasks assigned by captain/supervisor and outlet manager. Requirements: • Be able to speak English and other language. • Female age 18-25. • Good appearance and attitude, work hard/willing to learn. • Can work split/shift.
2. Driver, Beijing Whosawho Culture Group (China) Requirements: • Age 21-24, must be no less than 175cm. • Army-man transferred to civilian work, Party member. • No family responsibility, can live in dormitory. • Healthy, can work overtime (male.) • Over three years of safe driving experience, B-type license, familiar with roads in Beijing strong sense of safe driving. • Guarantor with Beijing residence and work permit required for non-Beijing residence and work permit applicants.
3. Waiter/waitress, Swensen’s (Thailand) Requirements: • Male/Female. • 18-24 years old. • Good personality and has proper figure. • Male: Minimum height is 168 cm., weight does not exceed 70 kg. • Female: Minimum height is 155 cm., weight does not exceed 55 kg. • Must be cheerful, speak clearly, active and has service mind. • Ability to do shift work (Special consideration for applicants who have ability to work on weekend).
4. Flight attendant Garuda (Indonesia) Requirements: • Female, 160 – 180 cm tall. • Attractive, slender, nice smile. • Single, must guarantee to remain single for at least three years upon signing contract (or will be liable to repay all training fees). • Must have completed high school education. • Fluency in English and excellent communication skills. • Can travel and be away from home for periods of up to one month.
130 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 19
5. Vietnam-Taiwan Sugar Company Ltd. (Viet Nam) Recruitment Announcement: The company is seeking candidates to work in the following sectors: • Construction work. • Electro mechanics. • Plantation. • Chinese-Vietnamese translator. • Driver.
Requirements: • Men. • Education: College diploma or higher. • An application profile as required by regulations should be submitted with a certificate of personal ethics, a copy of national ID, two passport photos (3x4) and notarized true copy of relevant degrees and diplomas. • Salary: Negotiable.
Sources: Bong Thom, http://bongthom.com, 5 June 2012; Support to Promote and Apply ILO Convention No. 111 Project (ILO, Beijing, 2008); Bangkok Post: Jobs Thailand, http://www.jobth.com(accessed 1 June 2010);VGCL: Lao ng (Labor), 4 July 2011 (Viet Nam); Local newspapers Jakarta (July 2011).
131 Equality and non-discrimination at work in Cambodia: Manual Exercise 20
Exercise 20. Discriminatory recruitment practices? Case studies
Instructions for trainers
Aim – To identify different forms of discrimination in recruitment practices.
Time – 40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise with participants and distribute Handout 1. Divide them into small groups. Give each group a different case, and ask them to read and discuss the questions provided. Tell each group to prepare a presentation on the case and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a brief presentation on their case. Invite other participants to ask questions or comment on each presentation. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • Discrimination at the recruitment stage is very common and can take different forms. One manifestation of discrimination in recruitment is excluding applications from persons with names that indicate a specific sex, race, ethnicity or religion. Requirements to indicate one’s religion or family status during the application process also frequently lead to discrimination. Other common forms of discrimination on the grounds of social origin or ethnicity may involve giving preference to persons with certain family background or those coming from one’s own ethnic group, home country or province, or an elite educational institute. Discrimination in recruitment reinforces horizontal and vertical job segregation in the labour market, that is, causing groups of a certain sex, race, ethnicity or religion to be concentrated in certain segments of the labour market with reduced chances of job or career mobility. • International experience shows that most discrimination takes place at the recruitment stage. For this reason policy-makers and individual employers should prioritize action against discrimination in recruitment practices – from job advertisements to short-listing, testing, and interview practices.
132 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 20
Exercise 20. Discriminatory recruitment practices? Case studies
Handout 1. Cases
Case A. Textile factory case – UK
Mr Hussain recently applied, for the fourth time, for a job as a warper at a textile factory, close to where he lives in Bradford, England. Mr Hussain had 15 years’ experience in textile work. As before, he did not receive a reply to his application. However, his daughter, who had applied at the same time, in the name of J.A. Taylor was called in for a trial. Mr Hussain comes and complains about discrimination.
Questions for discussion: 1. What information would you collect to establish whether there is a case of discrimination? 2. On what grounds could Mr Hussain have been discriminated? 3. Could similar cases take place in Cambodia?
Case B. Exemptions from recruitment criteria – Thailand
The Electricity Generating Authority of Thailand (EGAT) advertised a vacant position prescribing several selection criteria that candidates should meet. The selection criteria were partly standard requirements used in all state enterprise recruitment processes and partly criteria specific to the position. All applicants were required to take a written examination. However, children of current or former workers of EGAT staff members were exempted from some of the selection criteria, including the age requirement and the set high school grade point average (GPA) requirement. This exemption applicable only to children of the current or former EGAT staff members was the result of agreement between the company management and the trade union in a meeting organized by the EGAT labour relations committee.
Questions for discussion: 1. Do you think the EGAT policy to exempt children of current or former staff members from certain selection criteria constitutes discrimination? On which grounds? 2. When assessing whether the policy involves discrimination or not, does the fact that exemption was agreed upon by the company management and trade union make any difference? 3. Could similar cases take place in Cambodia?
133 Equality and non-discrimination at work in Cambodia: Manual Exercise 20
Exercise 20. Discriminatory recruitment practices? Case studies
Handout 2. Case responses
Case A. Textile factory case – UK
This case is based on a real-life court case in the UK.110 The court concluded that the case involved ethnic discrimination. In its assessment of the case the employment tribunal took account of the fact that, in four years, not one of the company’s 70 workers had been from an ethnic minority group, even though the mill was very near a neighbourhood with a large ethnic minority population, many of whom had considerable skills in the textile trade. The complainant was awarded a total of around £7,000 in compensation, including £2,500 for injury to feelings.
This case illustrates what kind of information tribunals need to collect to assess whether discrimination has taken place. In this case the evidence in company employment records showed a clear pattern of structural or systemic ethnic discrimination in company recruitment and employment practices.
The case could have been considered also discriminatory on the grounds of sex or age, but these issues were not discussed in the real-life case. In many South-East Asian countries textile work is considered a “women’s job”. This view is based on stereotyped ideas about gender roles and presumed capabilities of both sexes. Promoting gender equality requires getting rid of such discriminatory biases, and assessing applicants’ suitability for the job with reference to their merit in terms of individual capabilities, skills and experience.
Case B. Exemptions from recruitment criteria - Thailand
This real-life case from Thailand is a good example of nepotism and discrimination on the grounds of social origin – or more specifically, family background.111 The Electricity Generating Authority of Thailand (EGAT) sent a letter to the Council of State for advice as to whether the particular job advertisement constituted unlawful discrimination. The advertisement in question exempted the children of workers or former workers of EGAT from qualifications that “outside” applicants were expected to meet. The Council of State advised that an advertisement with such exemptions constituted unjust discrimination and contradict the principle of equality protected under Section 30 of the Constitution of the Kingdom of Thailand B.E. 2540 (1997).
The Council of State observed that, as EGAT is a state enterprise, all activities conducted under EGAT’s authority, including issuing a job advertisement must be in line with Sections 26, 27 and 30 of the Constitution. It explained that Section 30 of the Constitution reaffirmed the principle of equality that “the State must treat persons who are the same in essence alike and treat person who are not the same in essence differently”.
The Council of State considered that the qualifications prescribed in EGAT’s job advertisement should apply to all so that all candidates would be on equal footing. The exemption of some qualifications for children of current or former workers of the EGAT meant different treatment and this constituted discrimination to benefit a certain group of people.
110 “Hussain v Alfred Brown (Worsted Mills) Ltd, Case No. 1805479/98,” in United Kingdom, Commission for Racial Equality: Statutory Code of Practice on racial equality in employment (London, 2005). 111 Council of State of Thailand: Legal opinion No. 325/2547 (2004).
134 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 21
4.2 Pay equity
Exercise 21. Equal pay for work of equal value – Job evaluation: Case study
Instructions to trainers
Aim –To discuss the concept of equal pay for work of equal value and to test the use of objective job evaluation criteria.
Target group – All audiences, particularly useful for government, employers’ and workers’ representatives involved in wage setting or negotiations.
Time – 60 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – Prepare a flipchart paper with a job evaluation table for each group. Draw the tables as in Handout 2. Give each group one flipchart with the job evaluation table and one marker pen.
Steps.
Ø Share the aims of the exercise with the participants.
Ø Introduce the exercise by explaining that equal remuneration for work of equal value is a concept that is not always easy to understand. There is broad agreement that pay equity between men and women is fair and just, and that equal pay must be provided to men and women who do exactly the same or very similar work. However, more understanding is needed on fairness in pay in the more usual labour market situations where women and men are found in jobs that are different but of equal value. This exercise introduces the concept of equal pay for work of equal value and demonstrates what kind of evaluation criteria can be used for an objective job evaluation of two jobs.
Ø Divide participants into small groups. Provide Handout 1 to all groups and ask them to read the case study. You may also ask a volunteer to read the case aloud to all participants.
Ø After reading the case explain that in this exercise the groups are requested to assess the value of the two jobs, the librarian and the refuse collector, in the case study: Explain that job evaluation means rating various job elements of two or more jobs based on objective criteria to assess the value of the jobs. The evaluation criteria are usually related to skills and abilities, responsibility, effort and working conditions of the jobs in question.
135 Equality and non-discrimination at work in Cambodia: Manual Exercise 21
Ø Give Handout 2 to the participants and ask every group to: • Conduct an evaluation of the two jobs by filling in the job evaluation sheet on the flipchart. • Discuss whether or not they think the two jobs should be paid the same wage. • Select a spokesperson who will present the outcomes of their job evaluation to the plenary.
Ø When the groups are ready, ask the spokesperson from every group to show their flipchart and present the outcome of their discussion on a few job elements (three minutes maximum per group). After the presentations compare the job evaluation sheets of the groups and comment on the results. Usually the job of the librarian scores higher than the job of the waste collector. The men engaged in garbage collection get more points for bad and dangerous working conditions but the female librarians get more points for job elements such as clerical, computer and archiving skills, years of education and communication with the public.
Ø Distribute Handout 3 and introduce the outcomes of the real case. In the real case the job evaluation the scores of the two jobs are almost equal, with the librarian scoring slightly higher in total than the garbage collector. Lucy and her colleagues in the real case find that there is discrimination in pay. Ask for more comments and answer any remaining questions.
Ø Round up the discussion as follows: • This case illustrates the common phenomenon of undervaluing of women’s work. Library work is mostly done by women and therefore paid less than waste collection mostly done by men, even if the value of the two jobs are the same. Undervaluing women’s work is a common problem in all labour markets and it leads to a gender pay gap, which is a serious form of structural sex discrimination. Gender pay gaps should be addressed as a matter of public policy. • In Cambodia, Article 106 of the Labour Law provides for equal wages for “work of equal conditions, professional skill and output […] regardless of their origin, sex or age”. The Cambodian government has interpreted this to mean provision of equal wages for workers who perform the same jobs, have the same skills and work under the same conditions. The ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) has repeatedly asked the Cambodian government to give full legislative expression to the principle of equal remuneration for men and women for work of equal value and to apply it also to situations where men and women perform work of different nature that is nevertheless of equal value.112 • Conducting objective jobs evaluations, such as the one in this exercise, is an important practical measure to promote pay equity. The outcomes of the job evaluation should be used to inform wage negotiations and/or review payment practices in companies. In many countries job evaluation outcomes have also led to the revision of public sector wage regulations and payment practices. The CEACR has also encouraged the Cambodian government, with the cooperation of workers’ and employers’ organizations, to take steps towards the development and promotion of objective job evaluation methods.113
112 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012); ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2011). 113 ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2012).
136 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 21
• When conducting a job evaluation, it is very important to use objective criteria free from discriminatory bias. The evaluation criteria should be selected carefully so that the selected job elements and the weight they are given reflect the content of the jobs in a fair and transparent manner.
Notes to trainers
If comparison of librarians and refuse collectors does not adequately illustrate the male- female job segregation and wage situation in Cambodia, some other occupations may be chosen for comparison in this exercise. In the roundup of the exercise it is, however, good to refer back to the “Lucy” case, as it presents the outcomes of a real life job evaluation conducted in the United States.
137 Equality and non-discrimination at work in Cambodia: Manual Exercise 21
Exercise 21. Equal pay for work of equal value – Job evaluation: Case study
Handout 1. Case study
Lucy – Librarian and union leader114
Lucy Parsons worked for the city as a Librarian. As the Union Steward, she was getting ready for negotiations with the city by looking at the pay schedules for all the different departments. One thing grabbed her attention. The lowest paying job for the Department of Public Works (DPW) paid more than the highest paid job in the Library. Lucy asked some of the people with high seniority why that was. Basically she was told it had always been that way because mainly men worked for the DPW and mainly women worked in the Library. "That is not right," Lucy thought, "jobs should not be paid according to which sex works on them."
All union people know that a basic way to achieve fairness is to apply the rule "Equal Pay for Equal Work." This means that people doing the same job should receive the same base pay. There may be some differences added to people's pay to reflect working second or third shift, or bonuses added for years of service, but the base pay is equal. This prevents management from playing favourites and discriminating against workers.
Lucy's problem is about "Pay Equity" which means equal pay for work of equal value. This means that jobs can be totally different but when you add up everything that is required for these jobs, they are equal and have the same value.
The fight for pay equity has shown that in many cases the basis of the difference in pay is because of discrimination, either against women or ethnic or religious minorities. In the past many companies openly based job rates upon sex. For example, in the USA, the steel industry was notorious for only hiring African-American male workers for the worst, most dangerous jobs, which were the lowest paid.
Job evaluation allows for the comparison of different jobs to determine the appropriate pay or wage. Job evaluation consists of analysing the content of a job by breaking it down into job components and assigning value to these components.
In Lucy's situation, the city has written job evaluations that give points on a scale of 0 to 5 for the different job elements criteria such as skills, effort, responsibility and working conditions. Five points means that the job is very demanding in terms of bad working conditions or a high level of education is needed, while zero or one point mean easy working conditions or very little education needed.
114 Adapted from United Electrical, Radio and Machine Workers of America (UE): UE Information for workers, Bargaining for pay equity, http://www.ueunion.org/stwd_fairpay.html (accessed 8 Aug. 2009).
138 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 21
Exercise 21. Equal pay for work of equal value – Job evaluation: Case study
Handout 2. Job evaluation sheet
Most job evaluation systems rate jobs based upon different job elements to assess the value of a job. A typical set of job evaluation elements is given in the table below.
Instructions: 1. Complete the job evaluation sheet. 2. Prepare a short presentation as if you were Lucy on: How did you score the two jobs (criteria used) and whether your group thinks the two jobs should be paid the same or differently.
Sample Job evaluation comparison sheet Criteria* Librarian Garbage collector 1. Knowledge and education level 2. Experience 3. Initiative and ingenuity 4. Physical demand 5. Mental or visual demand 6. Responsibility for equipment or process 7. Responsibility for material or product 8. Responsibility for safety of others 9. Responsibility for work of others 10. Working conditions, and hazards 11. Complexity of duties 12. Importance of not making errors 13. Contact with others 14. Ability to work with confidential data Total points * Points are given on a scale of 0-5: 0 is not important; 5 means very important.
139 Equality and non-discrimination at work in Cambodia: Manual Exercise 21
Exercise 21. Equal pay for work of equal value – Job evaluation: Case study
Handout 3. Responses: Job evaluation results
Lucy and the other Librarians sit down and take a look at the job evaluations. The men on the refuse trucks get more points for bad and dangerous working conditions but the women get more points for having clerical skills, library skills, education, and for working with the public.
When they add up the points that each job was allotted they find out that the two jobs have just about equal points. Why the pay difference? Discrimination. There is no other answer. Many years ago when the pay was set, the people in charge decided that “women's work” was not worth as much as “men's work”.This is a good example of what is meant by “pay equity for jobs of equal value”.
Results: Job evaluation comparison sheet115 Criteria* Librarian Garbage collector 1. Knowledge and education level 4 2 2. Experience 3 1 3. Initiative and ingenuity 2 2 4. Physical demand 1 5 5. Mental or visual demand 4 2 6. Responsibility for equipment or process 2 4 7. Responsibility for material or product 3 2 8. Responsibility for safety of others 1 5 9. Responsibility for work of others 2 0 10. Working conditions, and hazards 1 5 11. Complexity of duties 4 2 12. Importance of not making errors 2 2 13. Contact with others 4 2 14. Ability to work with confidential data 3 1 Total points 36 35 * Points are given on a scale of 0-5
115 Adapted from United Electrical, Radio and Machine Workers of America (UE): Information for workers, Bargaining for pay equity, http://www.ueunion.org/stwd_fairpay.html (accessed 8 Aug. 2009).
140 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 22
Exercise 22. Discrimination in pay and benefits: Case studies
Instructions for trainers
Aim – To explore the scope and definition of “remuneration” given in the Equal Remuneration Convention, 1951 (No. 100) and to identify various forms of indirect wage discrimination.
Time – 40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise and distribute Handout 1 to participants. Divide them into small groups. Give each group a different case, and ask them to read and discuss the questions provided. Tell each group to prepare a presentation on their case and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to introduce and give a brief presentation on their case. Invite other participants to ask questions or comment on each presentation. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • Cases A-C in this exercise highlight the definition of remuneration given in the Equal Remuneration Convention, 1951 (No. 100): “the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment” (Article 1 (a)). This means that family and household benefits, private health insurance, over-time pay are all part of remuneration and should be paid to all workers without any discrimination. • The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted that the definition of “wage” set out in Article 103 of the Cambodian Labour Law (1997) is too narrow, as it excludes health care, legal family allowances, travel expenses, and benefits granted exclusively to help the workers do his or her job from its scope. The CEACR has asked Cambodian Government to amend the Labour Code to bring it in conformity with the Equal Remuneration Convention, 1951 (No. 100).116 • Wage discrimination is not always visible, and especially many forms of gender- based wage discrimination are hidden. It is therefore, important to seek more
116 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012); ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia (Geneva, 2011).
141 Equality and non-discrimination at work in Cambodia: Manual Exercise 22
information about the characteristics of the disadvantaged target groups. The case studies included in this exercise highlight the different forms of indirect wage discrimination and the process to identify whether discrimination has taken place. Sometimes there is obvious differential treatment between different groups of workers, for example full-time and part-time workers, but not all forms of differential treatment are discrimination explicitly prohibited by (international and/or national) law. However, if the great majority of workers of the disadvantaged group share a personal characteristic, such as the membership in same trade union or the same sex, ethnicity, migrant or health status, it is likely that indirect discrimination against the disadvantaged group is taking place based on these characteristics. • Indirect discrimination is often invisible when looking at individual cases as these may appear to be isolated cases. However, statistics can help identify forms of indirect discrimination. • Case D has been included in this exercise to illustrate how the Arbitration Council has applied the Cambodian Labour Law in wage discrimination cases. In addition to this Naga World case, the Arbitration Council has heard cases on wage discrimination on the ground of trade union membership.117
117 See for example Arbitration Council of the Kingdom of Cambodia: Arbitral Award 15/04-Lucky Zone.
142 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 22
Exercise 22. Discrimination in pay and benefits: Case studies
Handout 1. Cases
Case A. Family and household allowances - Japan
Ms X, the mother of one child, worked as a bank clerk for the Iwate Bank (the Bank). Since 1976 she had received both a family allowance and a household allowance on the basis that she was the head of her household. The worker’s wage agreement of the Bank made provision for the allowances to be paid to “a clerk who is a head of household”. This was defined as a clerk who was “supporting the household with his or her income”. However, the agreement also stated that if the clerk was a woman and her husband earned more than the maximum income permitted to qualify for a family support tax deduction the allowances would not be paid. By contrast, for a male employee, the allowances would be paid regardless of the income of his wife. In 1981, when X’s husband received income above the limit for the tax deduction, the Bank stopped paying Ms X the allowances. Ms X began court proceedings claiming that the worker’s wage agreement discriminated against women, and claimed a back payment of the allowances.
Questions for discussion: 1. Do you think the provisions of the Bank wage agreement on family and household allowances are discriminatory? What type of discrimination is it? 2. What would the outcomes of the case be in Cambodia?
Case B. Voluntary health insurance
A trade union from the local branch of a multinational supermarket chain comes and complains about discrimination. The company pays contributions to a private health-care scheme, but only for staff members from the upper-middle management upwards. The private health-care scheme provided for the upper-middle managers allows them to use the services of a private health clinic and covers additional benefits such as dental care. In contrast the other employees can only use the services of public health clinics and do not receive any additional benefits.
Questions for discussion: 1. Is this discrimination? If so, what type of discrimination? 2. What information would you collect to establish whether there is discrimination? 3. Would the current law in Cambodia permit a staff member of the lower-middle management to file a lawsuit for discrimination? What remedial options does the staff member have?
Case C. Part-time work
A group of workers from a local IT service provider comes and complains to you about discrimination. They are all part-time workers. The collective agreement within the company provides that overtime on normal days is paid at 150 per cent. However, overtime is defined as working time performed over and above the full-time schedule.
Questions for discussion: 1. Is this discrimination? 2. What information would you collect to establish whether there is discrimination?
143 Equality and non-discrimination at work in Cambodia: Manual Exercise 22
Case D. Different wages for local and foreign workers – Cambodia
Ms Sek Sam Orn worked as a pit supervisor with the Cambodian branch of Naga World Casino (the Casino). Her salary was US$350 per month, including annual seniority increments. In 2007, two new pit supervisors from the Philippines, Ms Jeanette P. Ordona and Ms Michelle Manalang Dy, joined the Casino. They held the same positions as Ms Sek, but their salary was US$1,000 per month, and they also received other benefits such as air tickets, food and laundry service. Ms Sek felt that the differences between her and her foreign colleagues’ wages were unfair, and decided to take the case to the Arbitration Council with the help of her trade union.
Questions for discussion: 1. Do you think the wage differences between local and foreign pit supervisors at the Casino constitute discrimination? If so, what type of discrimination? 2. How would you decide this case if you were an arbitrator hearing the case?
144 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 22
Exercise 22. Discrimination in pay and benefits: Case studies
Handout 2. Case responses
Case A. Family and household allowances – Japan
This is a real-life case from Japan.118 The Sendai court held that the family and household allowance provisions of the Iwate Bank (the Bank) wage agreement constituted direct pay discrimination against women. The Court ordered the Bank to pay Ms X the family and household allowances that it had withheld from her.
During the proceedings the Bank argued that the family and household allowances were not a “wage” because the allowances were not given in exchange for labour, but instead to provide livelihood assistance for families. The Bank further argued that if both the husband and the wife were employed, it was socially accepted to recognize the man as the head of the household and the different allowances for men and women were acceptable because they accorded with social norms.
The Court did not accept the arguments presented by the Bank. It held that the household and family allowances were a “wage” within the meaning of the Japanese Labour Standards Law. The Bank did not therefore have discretion in relation to the allowances. The Court stated that when determining whether the allowances were payable, the main factor should be whether or not that person contributed to the family income, rather than whether the person was the “head” of the household. In this case, Ms X provided for her family and was therefore entitled to the allowances. The Court further held that the equality principle between men and women must be implemented, even in private arrangements such as the Bank’s worker’s wage agreement.
Cambodian Labour Law currently stipulates that family allowances are not included in the definition of “wage” (Article 103). The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted that this provisions is not in conformity with the the Equal Remuneration Convention, 1951 (No. 100). The CEACR has therefore asked the Cambodian government to amend the Labour Code to include family allowances into the concept of wage.119
Case B. Voluntary health insurance
This case discusses remuneration practices in an imaginary supermarket chain in an urban area. Generally speaking, it is a quite common and legitimate practice to pay higher management higher remuneration and better benefits as compensation for their higher level of responsibility. However, this type of remuneration practices may sometimes lead to discriminatory outcomes.
118 “Iwate Bank Case, The Hanreijihou, No. 1410 pp. 37-43, Sendai High Court, 10 January 1992”, in C. Forster et al.: A digest of case law on the human rights of women (Asia Pacific), Chiang Mai, 2003. See also ILO: “Individual observation on Convention No. 100 with respect to Japan” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 96th Session, Geneva, 2007. 119 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012);
145 Equality and non-discrimination at work in Cambodia: Manual Exercise 22
When assessing whether a case involves discrimination, it is usually necessary to find out more about the composition of the upper-middle management and the lower-middle management in terms of sex, ethnicity, migrant status, and other personal characteristics. For example, if the large majority of the upper-middle management are men and the large majority of the lower-middle management are women, this may point to indirect discrimination of women – and they could file a claim on sex discrimination. Similarly, a claim on indirect discrimination on the grounds of social origin could be made if it was found that the lower-middle management is dominated by rural migrant workers and the upper- middle management by local workers from the city.
Health care benefits financed by the employer, company or industry have cash value, and are thus considered as part of the salary paid by the employer to the employee. The ILO Equal Remuneration Convention, 1950 (No. 100) requires that these types of “emoluments [...] payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment” should be paid to all workers without any discrimination (Article 1 (a)). This means that the salaries of lower-middle management and upper-middle management (including the base salary, all salary increments, bonuses and additional health care benefits, etc.) should be set at levels that correspond to the “value” of their work. The “value” of the jobs should be assessed by comparing the skills and abilities, responsibility, effort, and working conditions of the two jobs in question.
It may be stressed, however, that allowances made under a public system of social security are not considered as a form of remuneration as they are not “payable directly or indirectly by the employer”. Any difference in contribution paid by the employer or received in the form of benefits by the employee may still be discriminatory, but is not a form of discrimination for which the employer should be held accountable in the case at hand.120
In Cambodia, health care benefits paid by the employer are currently not included in the definition of “wage” under Article 13 of the Labour Law. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has noted that this provisions is not in conformity with the Equal Remuneration Convention, 1951 (No. 100), and has asked the Cambodian government to include health care benefits into the concept of wage.121
Case C. Part-time work
Part-time workers have a right to equal pay for work of equal value compared to full-time employees – including an equal right to overtime compensation for work beyond the agreed work schedule. The ILO Part-Time Work Convention, 1994 (No. 175) requires that “part-time workers do not, solely because they work part time, receive a basic wage which, calculated proportionately, is lower than the basic wage of comparable full-time workers”. The ILO Part- Time Work Recommendation, 1994 (No. 182) recommends further that if the employer needs the employee to work beyond agreed work hours, changes in agreed schedules should be subject to prior notice and the compensation for the overtime work should be negotiated. The starting point is that the employer needs to provide overtime pay to compensate for the extra working time put in by the workers.
120 ILO: “Equal Remuneration, General survey,” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, International Labour Conference, 72nd Session (Geneva, 1986), paras 17 and 88. 121 ILO: “Individual observation concerning Equal Remuneration Convention, 1951 (No. 100) with respect to Cambodia”, in Reports of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, 2012);
146 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 22
Wage discrimination against part-time workers is widespread especially in countries where part-time work by women is very common. In these circumstances the wage discrimination becomes much more problematic, as it gets intertwined with indirect sex discrimination. Indirect discrimination may also emerge on other grounds (e.g. ethnicity, rural migrant status), depending on the staff composition among part-time and full-time workers.
To identify possible indirect discrimination in the case at hand, further analysis is needed of the composition of the full-time and part-time groups of workers. If the majority of the full- time employees are men (or belong to the mainstream ethnic group in society, or are urban residents), and the part-time employees are women (or belong to a different ethnic group, or are rural migrant workers), this is most likely a case of indirect discrimination on the grounds of sex, (or ethnicity or social origin).
Case D. Different wages for local and foreign workers – Cambodia
This is a real-life arbitration case from the Cambodian Arbitration Council.122 It is one of the few cases where the Arbitration Council has applied Article 12 of the Cambodian Labour Law, which prohibits discrimination in employment. In the actual case the Arbitration Council ruled that the wage practices in the Casino constituted discrimination on the grounds of race. It ordered the Casino to provide the same wages to Cambodian workers and foreign workers who hold the same position in the same department, provided they have the same working conditions, professional skills and output.
Even if the Cambodian Labour Law was interpreted to prohibit discrimination on the grounds of citizenship, the Casino could have defended itself against the workers’ claims by presenting countervailing evidence. Common claims presented by employers against discrimination on the grounds of citizenship include, for example, that the company needs international workforce with relevant language skills to serve international customers and that paying higher compensation is necessary to attract skilled foreign workers to the company. If the employer had demonstrated a genuine need for hiring foreign workers and the higher salary was fully explained by the need to attract specific skills not available among Khmers on the Cambodian labour market, the differences in salary might not have been considered discrimination. In this scenario being a foreigner and having certain language skills or a certain level of relevant experience in a particular industry or job could be considered an inherent requirement of the work.
122 Arbitration Council of Kingdom of Cambodia: Arbitral Award 47/09-Naga World.
147 Equality and non-discrimination at work in Cambodia: Manual Exercise 23
4.3 Conditions of work
Exercise 23. Identifying harassment at the workplace: Case studies
Instructions for trainers
Aim – To identify what acts constitute sexual harassment and racial harassment, and discuss the rationale for preventing harassment at work.
Time – 60-75 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Step 1. Identifying sexual harassment – 40-50 minutes
Ø Share the aims of the exercise and distribute Handout 1. Divide participants into small groups. Instruct each group to read one of the case studies A, B or C, and ask them to discuss the questions provided. Tell each group to prepare a presentation on the case study and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a brief presentation on their case. After each presentation, invite other participants to ask questions or comment. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Step 2. Identifying racial harassment– 15-20 minutes
Ø Instruct each group to read and discuss case study D and the questions provided. Reconvene the plenary when the groups are ready and facilitate general discussion on the case. In the end give the case responses and add points not mentioned by the groups using Handout 2.
Step 3. Roundup – 5 minutes
Ø Roundup the discussion as follows: • Harassment consists of unwelcome conduct or comments that violate the other person’s dignity or create an intimidating, hostile, degrading or offensive work environment. Harassment is discriminatory if it is based on sex, ethnicity, disability health status, place of origin or any other ground of prohibited discrimination.
148 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 23
• Sexual harassment is a serious form of sex discrimination that mostly but not only women face when applying for jobs and at the workplace. Sexual harassment may take two forms: sexual blackmail (quid pro quo) or hostile working environment. Both sexual and racial harassment may involve physical, verbal or non-verbal acts. • Harassment undermines equality at work by calling into question the integrity, dignity and well-being of workers. • Harassment also impairs the productivity of enterprises as it weakens the basis upon which work relationships are built and creates an abusive and hostile working environment. • Sexual harassment is prohibited under Article 172 of the Cambodian Labour Law. However, as forms of discrimination on the grounds of sex and race, sexual and racial harassment are also prohibited under Article 12 of the Labour Law. But companies also have an imperative business interest in preventing sex and racial harassment, as it poisons the working environment and lowers workers’ morale and productivity.
149 Equality and non-discrimination at work in Cambodia: Manual Exercise 23
Exercise 23. Identifying harassment at the workplace: Case studies
Handout 1. Cases
Case A. Sexual harassment at the workplace – China
Ms Shen worked at a company in Beijing. Mr Pak, her direct superior, often sent her emails and SMS’s, saying he liked her, and repeatedly asking her to go out with him. He also forcedly touched her in the office while discussing work, saying her obedience could get her a raise and promotion. Ms Shen repeatedly hinted that she was married and it was inappropriate for him to do so. However, Mr Pak kept harassing Ms Shen and Ms Shen had to repeatedly turn Mr Pak’s dinner invitations down. Ms Shen also had her hair cut short and only wore long trousers, because she knew that Ms Pak liked women with long hair and skirts.
When Ms Shen continuously refused to go out with Mr Pak, he became angry and started to retaliate. Firstly, when he learned that Ms Shen was the only child in her family and her mother needed her care because of cancer, Mr Pak purposely dispatched her to work in another city. Secondly, he spread insulting rumors and slanders about Ms Shen among other company employees. In addition, Mr Pak also tried to falsify evidence on illegal and irregular practice with which to fire Ms Shen. As a result of the heavy mental stress, Ms Shen suffered severe depression.
Furthermore, Mr Pak raised the salary of his mistress to over RMB 15,000, while Ms Shen and other people in the same post only received RMB 6,000. Everybody felt it was quite unfair.
Questions for discussion: • Does Mr Pak’s conduct in this case constitute sexual harassment? If yes, make a list of the acts or conduct by Mr Pak that you consider as sexual harassment. • Does Mr Pak’s conduct constitute discrimination? • Analyze the impacts of Mr Pak’s conduct on the working environment and well-being of workers. Do you think it would be in the company management’s interest to take action to address the situation? • What can the company management do to address the situation and prevent similar situations from emerging in the future? • Could this kind of case happen in Cambodia? If yes, what would the outcomes of the case be?
Case B. Sexual harassment by a university teacher – Viet Nam
Ms C was a 22-year-old student at the economics and business administration department of the Tay Nguyen University in Dac Lac Province in Viet Nam. When she was writing her graduation thesis, the teacher assigned as her supervisor, Mr X, started to act in a manner that Ms C found very disturbing. During the process of Ms C’s thesis writing, Mr X started to repeatedly send her SMS’s and call her on her mobile phone to ask her out for dates in coffee bars and suggesting her to have a sexual relationship with him. In some of the SMS’s and calls he directly threatened to make Ms C fail the final thesis defense if she would not consent to have sexual intercourse with him. Ms C repeatedly turned Mr X’s requests down and asked him to stop making such requests. Mr X became frustrated about Ms C’s repeated refusal. On one night in June 2011 he sent her several SMS’s with threats and an ultimatum to come to a specific guest house on Nguyen Cong Tru street in a nearby city. After receiving these threatening SMS’s Ms C decided to bring a complaint to the competent authorities claiming that Mr X’s conduct constituted sexual harassment.
150 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 23
Questions for discussion: • Do you think Mr X’s action constituted sexual harassment? Explain. • Do you think the case constitutes discrimination in employment and occupation in the meaning of ILO Convention No. 111? • Could this kind of case happen in Cambodia? If yes, what would the outcomes of the case be?
Case C. Is it sexual harassment?
Ms A was an accountant clerk working for a financial holding company. Mr B, a Senior Manager, was giving her a lot of attention for a number of months. Ms A privately indicated to Mr B on a number of occasions that his observations were inappropriate and made her feel uncomfortable, but to no avail. At some point, the incidents in the course of a single week included the following: On Monday Mr B asked Ms A in a public meeting what colour of underwear she is wearing. On Tuesday he asked her in private what method of contraception she is using. On Thursday Ms A received a picture by e-mail from Mr X showing a couple intimately fondling each other, accompanied by text “for your eyes only”.... On Friday, Mr B made a remark in passing Ms A that “it is time you should think of buying a bigger size of bra”. Ms A ultimately complained to the General Manager. The General Manager said that he could not take any action because there is no law against making such jokes.
Questions for discussion: • Did Mr B commit sexual harassment or not? Explain why. • Do you think the case constitutes discrimination in employment and occupation in the meaning of ILO Convention No. 111? • What are the roles and responsibilities of the General Manager to respond to Ms A? • Could this kind of case happen in Cambodia? If yes, what would the outcomes of the case be?
Case D. Harassment at the workplace – Cambodia
Ms X worked as a sewer for June Textile garment factory in Cambodia. She and her colleagues in building D of the factory were widely acknowledged to be diligent workers, but still they were regularly scolded in very derogatory and offensive language by their Chinese supervisor Ms Ing. Approximately two or three times a week Ms Ing would shout at workers, call them “stupid”, and display inappropriate behaviour which violated the company’s internal rules. For example, on several occasions she threw workers’ cards under the table when they asked for leave. Workers in building D felt they could no longer tolerate the degrading behaviour of Ms Ing.
One day, Ms Ing suspected Ms X and two of her colleagues of stealing garments from the company. She searched the workers’ bags, but could not find anything. Still in doubt, she carried out a physical body search on Ms X, and even required her to take off all her clothes except her underwear. The body search was carried out in a warehouse with only a piece of cloth screening Ms X’s half-naked body. Ms X felt that her honour and dignity were gravely violated. She and her colleagues knew that Ms Ing’s conduct violated the company’s internal rules, and demanded the company to dismiss Ms Ing or to transfer her from building D. The company refused the workers’ claim, and the workers decided to take the case to Arbitration Council demanding dismissal or transfer of Ms Ing.
151 Equality and non-discrimination at work in Cambodia: Manual Exercise 23
Questions for discussion: 1. Does Ms Ing’s conduct constitute harassment? What type of harassment? 2. Does Ms Ing’s conduct constitute discrimination and on what grounds? 3. How would you decide this case if you were the arbitrator hearing this case?
Case E. Harassment by coworkers and supervisors – United States
Mr Charles Daniels, an African American electrician, was working on military aircrafts as part of a field service team of the US company Lockheed Martin, the world’s largest military contractor. Mr Daniels had been posted in several Lockheed Martin field service teams in Jacksonville, Florida, in Whidbey Island, Washington, and in Oah’u, Hawaii. In each of these locations Mr Charles was the target of persistent verbal abuse by coworkers and a supervisor whose racial slurs and offensive language included calling him racially derogatory names or saying “we should do to blacks what Hitler did to the Jews” and “if the South had won the civil war the US would be a better country”. After Mr Daniels reported the harassment to the company management, he was subjected to multiple physical threats, such as lynching and other death threats. Despite its legal obligations, Lockheed Martin company failed to discipline the harassers and instead allowed the discrimination against Daniels to continue unabated – even though the company was aware of the unlawful conduct.
Mr Daniels reported his case to the US Equal Employment Opportunity Commission (EEOC). In 2005, the EEOC filed a law suit to the U.S. Court for the District of Hawaii against Lockheed Martin on Mr Daniels behalf claiming racial harassment.
Questions for discussion: • Does this case involve discriminatory harassment? If yes, on which ground? Make a list of the acts or conduct which you consider as discriminatory harassment. • What could the company management have done to address the situation and to prevent similar situations from emerging in the future? • Could this kind of case happen in Cambodia? If yes, what would the outcomes of the case be?
152 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 23
Exercise 23. Identifying harassment at the workplace: Case studies
Handout 2. Case responses
Cases A, B and C. Sexual harassment
Some examples of acts constituting sexual harassment mentioned in the cases include: • Unwelcome suggestions to go on a date or to become lovers (presented directly, through intermediaries or by SMS). • Unwelcome touching and kissing. • Asking questions about personal matters and family situation.
The most serious forms of sexual harassment and violence are physical assault and rape which are criminal behaviour covered under criminal law in most countries. Sexual harassment can be physical (sexual touching), verbal (comments and questions), or non- verbal (whistling or sexually suggestive gestures). Sexual harassment may take two forms: • “Sexual blackmail” (“quid pro quo” or “this for that”): Conduct which makes a job benefit – such as a pay rise, a promotion, or even continued employment – conditional on sexual favours. • “Hostile working environment”: Conduct that creates an intimidating, hostile or humiliating working environment for the recipient.
All cases describe situations of sexual harassment as the conduct is unwelcome to the recipients. Cases A and B provide clear examples of different types of sexual blackmail, like promises of job benefits or threats of withholding job benefits or passing a university examination. Cases A, B and C provide examples of conduct that creates an intimidating and hostile working environment.
Noting the clear linkage between sexual harassment and discrimination, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has emphasized that sexual harassment is a serious form of sex discrimination and should be addressed within the requirements of Convention No. 111.123 The real-life case from Dac Lac Province124 in Viet Nam also constitutes discrimination in employment and occupation within the meaning of ILO Convention No. 111 as the Convention covers the full employment cycle, including preparation for work in the form of education and training.
Sexual harassment undermines equality at work by calling into question the integrity, dignity and well-being of workers. The productivity of enterprises is also impaired as sexual harassment distracts from the fundamental motivation upon which employment relationships are built: the delivery of the best possible service in return for the best possible compensation and treatment. For this purpose it is in employers’ direct interest to ensure that their workplaces are free from sexual harassment.
In Cambodia sexual harassment is prohibited in Article 172 of the Labour Law. Other countries in Asia are also increasingly developing specific legislation to outlaw sexual harassment. However, even if specific laws are not available, sexual harassment is a form of
123 ILO: “General observation on Convention No. 111: Discrimination (Employment and Occupation), 1958” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 91st Session, Geneva, 2003, pp. 463-464. 124 VGCL: Lao động (Labour daily newspaper), 4 July 2011, No. 151/2011 (Dac Lac Province, Viet Nam), p.7.
153 Equality and non-discrimination at work in Cambodia: Manual Exercise 23 sex-based discrimination and, therefore, prohibited as such in most national legislations. Enterprises which fail to respond to complaints of sexual harassment, implicitly accept such behaviour and allow discrimination on the basis of sex to occur. Taking no action in such cases implies committing an act of sex-based discrimination.
Appropriate action by employers in response to complaints includes: • Conducting a fact-finding process. Managers or designated staff should investigate and listen to the accounts of incidences by the alleged perpetrator and victim and third parties if necessary (while maintaining confidentiality for both parties). • Determining an appropriate response to resolve the situation and to ensure such behaviour does not occur again in the company. The appropriate response will depend on the nature and extent of sexual harassment and the working relationship between the perpetrator and the victim. The priority for most victims of sexual harassment who have not been subject to a criminal offence (e.g. rape) is to put an immediate stop to the behaviour and to have their respect restored. An apology and assurance that such behaviour will cease completely may often go a long way in solving and addressing the problem.
& See Exercise 27. Action against sexual harassment for further information of legislation adopted in different Asian countries to address sexual harassment.
Cases D. Harassment at the workplace - Cambodia
This is a real-life arbitration case from Cambodia.125 In the actual case the Arbitration Council found that Ms Ing’s conduct was indecent and immoral, and affected the dignity, honour, value, psychological safety and privacy of workers. As a result it ruled in favour of the workers, and ordered June Textile garment factory to dismiss or transfer Ms Ing from building D. The Arbitration Council noted that workers had the right to demand the employer to dismiss Ms Ing because Ms Ing’s conduct caused danger and made the workplace unsafe.
With this award the Arbitration Council pointed to harassment as a shortcoming by the employer to maintain a safe and health environment, health including absence of unnecessary stress factors. The Arbitration Council did not assess whether Ms Ing’s conduct constituted harassment or discrimination in violation of Articles 172 and 12 of the Cambodian Labour Law. However, in the light of Convention No. 111, the body search that Ms Ing conducted on Ms X could be interpreted to constitute sexual harassment. As stated by the ILO Committee of Experts on the Application on Conventions and Recommendations (CEACR), sexual harassment constitutes discrimination on the grounds of sex.126 In addition, Ms Ing’s conduct may also have involved ethnic or racial harassment and discrimination because she is Chinese while the workers she supervised are Cambodian. According to the ILO, in both cases whether or not the perpetrator intended to harass is not important. Most important is that the conduct was unwelcome to the victim.
Research conducted in Cambodia indicates that harassing behaviour and use of harassing language by supervisors occurs in some Cambodian garment and footwear factories. Workers strongly resent this behaviour and language, as it creates a hostile, intimidating and
125 Arbitration Council of Kingdom of Cambodia: Arbitral Award 123/10-June Textile. 126 ILO: “General observation on Convention No. 111”, in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 91st Session, Geneva, 2003.
154 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 23 humiliating working environment.127 It is employers’ responsibility to ensure that their organization is free from harassment. Preventing harassment at work is essential for workers’ well-being and good workplace relations, which are both essential to boosting company productivity.
Case E. Harassment by coworkers and supervisors – United States
This is a real-life case from United States, which was settled by a consent decree in the Court for the District of Hawaii.128 The case involves racial harassment, which constitutes discrimination on the grounds of race or ethnicity. Racial harassment may involve verbal abuse, such as offensive language, racist jokes and slurs or calling racially derogatory names. Physical threats are a very serious form of racial harassment.
In the actual consent decree Lockheed Martin agreed to pay Mr Daniels US$ 2,500,000, which is the largest amount ever obtained by the Equal Employment Opportunity Commission (EEOC) for a single person in a race discrimination case, and one of the largest amounts recovered for an individual in any litigation settlement by the EEOC. In addition, Lockheed Martin agreed to terminate and permanently bar Mr Daniel’s harassers from employment, and make significant policy changes to address any future discrimination. The litigation and consent decree were filed by the EEOC under Title VII of the Civil Rights Act in the U.S., which prohibits employment discrimination based on race, colour, religion, sex and national origin.
To prevent harassment at work employers should foster and promote respectful company culture and ensure that all managers, supervisors and staff know what kind of conduct is acceptable and unacceptable in the workplace. An internal grievance system should be adopted to handle harassment related complaints. If harassment occurs, complaints should be handled effectively, fairly and confidentially, and perpetrators should be punished adequately. To make an explicit commitment to preventing and addressing harassment, companies can adopt a policy on handling and preventing harassment in the workplace. The harassment policy can be adopted either separately or as part of the company equality policy.
127 A. Derks: Khmer women on the move: Exploring work and life in urban Cambodia (Honolulu, University of Hawaii Press, 2008), p.86-87; ILO: Action-oriented research on gender equality and the working and living conditions of garment factory workers in Cambodia, Social Protection and Gender (SPG) project (Phnom Penh, 2012). 128 U.S. Equal Employment Opportunity Commission: U.S. Court for the District of Hawaii, U.S Equal Employment Opportunity Commission vs. Lockheed Martin, CV-05-00479, 1 February 2008: Lockheed Martin to pay $2.5 million to settle racial harassment lawsuit (2008).
155 Equality and non-discrimination at work in Cambodia: Manual Exercise 24
Exercise 24. Employment agencies and equal treatment for workers: Case study
Instructions for trainers
Aim – To analyze the employment agency system and the discriminatory effects of seemingly neutral labour practices on rural migrant workers.
Time – 40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Divide participants into small groups. Distribute Handout 1 and ask the groups to read and discuss the case. Advise each group to select a spokesperson who will present the case study and answers in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready (10-15 minutes). Ask each group to give a brief presentation. Ask other participants to ask questions or comment and have the groups reply. Add points not mentioned by the groups or correct misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: Violations of labour standards, such as timely payment of wages or decent working hours, are unfortunately very common all around the world. While such violations clearly breach labour law, they only constitute discrimination against, for example, rural migrant workers if a comparable but socially distinct group of workers, such as local urban citizens, is not or significantly less affected. To analyze whether a labour practice constitutes discrimination it is necessary to collect factual information on the composition of the group(s) negatively affected to assess whether any group has been disproportionately disadvantaged compared to other groups. While legal frameworks to protect workers employed through an employment agency (agency workers) have been put in place both at the international and the national level, these workers are still often treated in less favourable terms in companies. It is fairly common for enterprises to seek to cut cost by outsourcing services that were previously provided by regular workers (directly recruited workers in a long- term labour relationship) to agency workers. Sometimes arrangements are made to transfer previous company staff to an employment agency which then rehires them to the company. If such recruitment practices affect mostly employees with a rural migrant background and the decision has a disproportionate negative impact on these workers, it constitutes indirect discrimination on the grounds of social origin or national extraction.
156 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 24
Exercise 24. Employment agencies and equal treatment for workers: Case study
Handout 1. Case
A letter to the Farmers’ Daily – China129
I am an ordinary rural migrant worker. I have encountered some problems that rural migrant workers like me always face. On 1 September 1999, I was hired as an electrician by the Beijing Water Conservancy Hospital. Until now, I have been working there for seven years. However, during the past seven years, I have never enjoyed leave on Sundays and Saturdays and legal national holidays. I could not get double wages for working on Sundays and Saturdays, or the triple wages for working on national holidays. The hospital demanded me to work for 24 hours, without [compensating me for any overtime]. I am not entitled to annual leave and I do not have a labour contract. The hospital only paid us the minimum wage rates and refused to sign labour contracts with us.
In February 2006, I again talked with all the hospital leaders and urged them to sign labour contracts with us as many of us had worked at the hospital for more than 10 years. The hospital leaders refused and also set up a labour management company to manage us. We had to work for two years on probation to formally get employed by this company. This meant that our earlier working years in the hospital had been in vain. And this company made no promise to let rural migrant workers enjoy Sundays and Saturdays, nor did they provide other legal holidays and compensation for extended working hours.
On the afternoon of 3 March 2006, Hou Xianrong, the Personnel Director met with us, but did not allow us to ask any questions or give any explanations. Then, Huang Can who works in the registration room asked why we did not receive extra payments for additional work on Sundays and Saturdays. Hou interrupted and sternly criticized Huang without letting her finish, telling her that he would talk about her issues alone with her afterwards. We also mentioned that we had been working around the clock, without Sunday and Saturday holidays, not to mention legal holidays and festivals, holiday bonuses and compensation. Hou more sternly shouted: “No way”.
To prevent us from resorting to the authorities, the hospital will soon have the property management company take us over completely. What shall we do?
Questions for discussion: 1. What violations of labour legislation can you identify in the case that would apply in your country? 2. Do these labour law violations involve discrimination? If yes, on what grounds? 3. What information would you need to collect to analyze whether the case involves discrimination? 4. Why would a hospital transfer its long-time employed migrant rural workers to a labour management company? 5. If the writer and his colleagues are transferred to the labour management company, what rights would they have towards the labour management company (the employment agency) and the hospital (the user company) in your country?
129 Adapted from “A letter to Farmers’ Daily from rural migrant workers in Beijing Water Conservancy Hospital” in Farmers’ Daily, 20 Mar. 2006.
157 Equality and non-discrimination at work in Cambodia: Manual Exercise 24
Exercise 24. Employment agencies and equal treatment for workers: Case study
Handout 2. Case responses
A letter to the Farmers’ Daily – China
This letter is a real letter sent by a rural migrant worker to a Farmer’s Daily newspaper in China. Similar cases can be found in most countries in East and South-East Asia. The case involves multiple violations of the labour laws in China, including failure to sign a labour contract, violation of working time and annual leave provisions, and failure to pay overtime compensation, etc. The victims have the right to ask the competent authorities to handle the complaint according to the law and seek relief from the labour dispute settlement or arbitration authorities or the people’s court (Labour Law Art. 77, Labour Contract Law Art. 77, Law on the Mediation and Arbitration of Disputes Art. 2).
To determine whether the above violations also constitute discrimination, it is important to analyze who the adversely affected workers are in terms of their social origin or rural migrant status, their sex, ethnicity, or any other ground covered in a country’s non-discrimination legislation. If it is found that a large majority of workers who were denied labour contracts and labour protection in accordance with the law are rural migrant workers, and the majority of workers who do have proper labour contracts and labour protection in accordance with the law are local urban residents, then the case involves discrimination on the grounds of social origin and internal migrant status. This type of discrimination against rural migrant workers is prohibited under Chinese law, and the writer and his colleagues could take the case to the people’s court under the Employment Promotion Law (Art. 62).
In China, the supply of workers through employment agencies is governed by the Labour Contract Law. The law regulates both the establishment of an employment agency and the rights and responsibilities of the three parties, that is, the worker, the employment agency and the user company. An employing unit is not allowed to establish an employment agency within the company to provide workers to the company or its subsidiaries (Art. 67). With reference to this it seems the Beijing Water Conservancy Hospital’s plans in the current case are against the Labour Contract Law.
The employment agency is the workers’ legal employer, and it should fulfill its related responsibilities in accordance with the law. It should also sign an employment contract of minimum two years with the worker (Art. 58). In China the user company should fulfill the following responsibilities: 1. Abide by the work standards set out by the State and provide corresponding working conditions and protection. 2. Inform the agency workers of the work requirements and remuneration. 3. Pay overtime work and performance bonuses, and provide welfare benefits related to job positions. 4. Provide necessary training required by the job positions for the agency workers. 5. Apply the normal wage adjustment mechanism to the agency workers who are employed continually (Art. 62).
Furthermore, the agency workers enjoy the same rights of equal pay for equal work as the regular workers in the employing unit (Art. 63).
158 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 24
Worldwide, the hiring of employees through employment agencies has become a more and more frequent employment practice in the past few decades to provide employers with temporary work and a measure of flexibility in response to rapidly changing market situations. The increase in this type of atypical employment and supply of workers through employment agencies does away with the traditional employer–employee relationship, and gives birth to a new type of “triangular employment relationship” – involving a worker, his or her legal employer (the employment agency) and a third party (the user company). The ILO Private Employment Agencies Convention (No. 181) was adopted in 1997 to provide an institutional framework for regulating employment agencies and protecting workers in this type of triangular employment relationships.130
Convention No. 181 requires member States to determine in their national law and practice the respective responsibilities of the employment agencies and user enterprises in relation to collective bargaining, minimum wages, working time, occupational safety and health, statutory social security benefits and other terms and conditions of employment (Art. 12). The allocation of these responsibilities between the employment agency and the user enterprise differs from country to country. The labour laws of many Asian countries are only starting to catch up with the need to adequately protect the workers in these types of triangular employment relationships. Articles 58 and 62 of the Chinese Labour Contract Law above provide one example of clear allocation of responsibilities between the employment agency and the user company.
Outsourcing is especially common for supplementary support functions, such as cleaning, security, caring and catering. Sometimes, the practice meets a genuine need of the employer, such as when the job for which the person is hired is temporary in nature (for example, to cope with a temporary increase in the workload or to replace a regular worker who is ill or on maternity leave). It may happen, however, that the choice to recruit a worker through an employment agency is not inspired by legitimate business needs, but by a desire to dilute the employment relationship and so evade the need to comply with labour law. When the operation of employment agencies is not properly regulated in a country, uncertainty arises as to where employer obligations rest with regard to issues such as signing a labour contract, overtime work, legal holidays, dismissal and minimum wage.
To avoid abuse of agency work arrangements, many countries have restricted the use of agency workers allowing it only in limited situations. For example, in many European countries, workers’ and employers’ organizations have broadly agreed that temporary work – and so the use of temporary work agencies – is only permitted for: (1) the temporary placement of an employee (e.g. an employee on maternity leave, but not an employee on strike); (2) a sudden increase in work (e.g. an unexpected large order); and (3) exceptional work (e.g. temporary staffing during a fair).
The status of an agency worker in a company is in many ways less stable and less protected than that of a regular worker, and the transfer to an employment agency usually has negative impacts on the workers. From a discrimination point of view, the question to always ask is who the negatively affected workers are. If the employment records show that the majority of workers transferred to an employment agency are women or rural migrants and they are subject to inferior treatment, the transfer decision may be considered indirect discrimination on the ground of sex or social origin and rural migrant status.
130 A. Bronstein: International and comparative labour law (Geneva, ILO, 2009), pp. 12-16, 39-42.
159 Equality and non-discrimination at work in Cambodia: Manual Exercise 25
4.4 Termination of employment
Exercise 25. Termination of employment during pregnancy: Case studies
Instructions for trainers
Aim – To distinguish discrimination on the basis of pregnancy as one of the most persistent forms of discrimination against women.
Time – 50-60 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Step 1 – 20-30 minutes
Ø Share the aims of the exercise and distribute Handout 1. Divide participants into small groups. Instruct each group to read case study A and discuss the questions. Tell each group to prepare a presentation and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to briefly present their answers. Invite other participants to ask questions or comment after each presentation. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Step 2 – 20-30 minutes
Ø Instruct some of the groups to discuss case study B and some of the groups to discuss case study C. Reconvene the plenary when the groups are ready and facilitate general discussion on the cases. In the end give the case responses and add points not mentioned by the groups using Handout 2.
Ø Distribute Handout 3 to participants. Ask them to review the legal provisions on maternity protection in Cambodian law as well as the box outlining good and bad company practices in providing maternity protection. Facilitate general discussion on challenges facing realization of maternity protection meeting the legal minimum standards in Cambodia, and the roles of labour market players and other stakeholders in pushing for improved maternity protection.
160 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 25
Step 3 – Roundup – 5 minutes
Ø Roundup the discussion as follows: • These three cases clearly illustrate the types of discrimination that women of childbearing age face in the labour market. While the law of most countries prohibits dismissal of pregnant women, in practice many problems remain. Employers commonly try to find an excuse – such as “dishonesty” in Ms Tang’s case, a clause in an agreement in Ms Savitree’s case or expiration of a fixed duration contract (FDC) in Ms Amara’s case – to justify the termination of employment of pregnant women. • To ensure that women can be protected against termination of employment on the grounds of pregnancy, many countries apply the principle of the reversal of the burden of proof in the hearing of pregnancy discrimination cases. This means that the employer needs to produce evidence that the dismissal or non-renewal of the employment contract was not due to pregnancy, but to some other valid reason(s). • In Cambodia, the Labour Law allows recourse to fixed duration employment contracts as a legitimate means for employers to hire labour for work that is temporary in nature, such as unforeseeable fluctuations in orders and production. Fixed duration contracts, however, have the inherent potential of discontinuing employment relationships based on discriminatory (and therefore prohibited) considerations, such as pregnancy. Because of this potential to deny some groups of employees basic protection under the Labour Law, recourse to such contracts must be limited in law. • The Cambodian Constitution states that “[a] woman shall not lose her job because of pregnancy” (Article 46.2). Discrimination on the grounds of pregnancy or maternity is also a form of sex discrimination against women, which is prohibited under Article 12 of the Cambodian Labour Law.
161 Equality and non-discrimination at work in Cambodia: Manual Exercise 25
Exercise 25. Termination of employment during pregnancy: Case studies
Handout 1. Cases
Case A. Ms Tang’s dismissal – Breach of honesty?
In August 2004,131 Ms Tang, a new university graduate was recruited by a Ministry in China to work in the General Office of the Personnel and Labour Department, under a contract with a probation of one year. In a health check in November 2004, she was found to be pregnant. She decided to have the child and reported the situation to her supervisor, Director Li of the General Office. He talked to her, giving her two options: Having an abortion or leave the Ministry. Later investigation found that Ms Tang had filled out her marriage status as ”single” in the Household Registration (Hukou) Transfer Card and the Personal History Form at the time of recruitment, and the marriage certificate she provided later was not hers.
Based on these facts, the Personnel and Labour Department of the Ministry charged that Ms Tang had ”practiced fraud and deceived leaders and colleagues,” which is an act against the principle of sincerity and honesty required of civil servants. According to the provisions on probation in the Temporary Regulations on Civil Service, the agreement signed at the time of recruitment and Ms Tang’s act, the Ministry decided to revoke the recruitment of Ms Tang. On 21 December, Ms Tang left the Ministry with the dismissal documents.
Questions for discussion: • Is there discrimination in this case? • What does the law in Cambodia say about similar situations? What would be the outcome of this case in Cambodia?
Case B. Ms Savitree’s dismissal – Agreement to terminate contract during pregnancy?
Ms Savitree worked as a flight attendant for Air Andaman Co. Ltd (the Company) in Thailand. In October 2003 she found out that she was pregnant, and informed an officer who oversees the work schedule of the flight attendants about her status. She requested the Company to offer her a more appropriate position during her pregnancy, but the Company was unable to do so. When the flight attendant’s schedule was released, Ms Savitree’s name was not on the list. On 11 November, the Company asked her to write a resignation letter and offered her an extra month salary even if she would not be working. Ms Savitree disagreed and the parties could not compromise. When her salary was due, the Company merely paid the salary up to 10 November, her last day of work. As she felt that she was treated unfairly, Ms Savitree contacted labour inspector Mr Surachet and explained her situation. Mr Surachet ordered the Company to pay Ms Savitree Baht 60,561 of compensation for her dismissal.
The Company filed a law suit requesting the Court to revoke Mr Surachet’s order. The Company noted that the employment contract between the Company and Ms Savitree contained a clause which states: “If an officer becomes pregnant within two years after entering into the contract, it is considered that the officer terminates the contract” (clause 6.1). The Company indicated that Ms Savitree was well aware of the specific qualifications of being a flight attendant and had agreed with the Company that if she would become pregnant within two years after entering into the contract, she would voluntarily terminate the contract.
131 “Ministry of Commerce may have exercised pregnancy discrimination” in China Women’s News (Beijing, 31 Mar. 2005); “There may be another explanation on revoking the recruitment of Ms Tang into civil service” in China Women’s News (Beijing, 2 Apr. 2005).
162 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 25
The Company argued that it did not dismiss Ms Savitree and, therefore, should not be ordered to pay the compensation.
Questions for discussion: • Was Ms Savitree dismissed or did she resign voluntarily? Should she be entitled to compensation? • What does the law in Cambodia say about similar situations? What would be the outcome of this case in Cambodia?
Case C. Non-renewal of a fixed duration contract during pregnancy - Cambodia
Ms Oeun Amara worked as a sewer for Cambodian garment company Star Knitting. She was employed on a fixed duration contract (FDC) and her uninterrupted service in the company had exceeded one year. In 2010 Amara became pregnant, and soon after, the company told her that her current FDC contract would not be renewed. When Amara’s FDC expired, her company paid her 5 per cent severance pay in accordance with the law. In addition, Amara was told that if she wanted to work in the company again after her child was born, she could be re-employed without a two-month probation.
Amara knew that the Cambodian Constitution states that “a woman shall not lose her job because of pregnancy” and that the Labour Law prohibits discrimination on the grounds of sex. She demanded Star Knitting to extend her FDC, but the company refused. The company stated that the Labour Law only protects against discriminatory dismissal, not against refusal to extend somebody’s FDC. In addition, the company noted that pregnancy is not listed as a prohibited ground of discrimination in any Cambodian law. Amara felt this could not be right, and took the case to the Arbitration Council with the help of her trade union.
Questions for discussion: 1. Does non-renewal of Amara’s FDC constitute discrimination? If yes, on which ground? 2. How would you decide this case if you were an arbitrator hearing this case? What should be the outcome of the case? 3. If Amara continues to be employed by the company, does she have right to maternity leave and benefits?
163 Equality and non-discrimination at work in Cambodia: Manual Exercise 25
Exercise 25. Termination of employment during pregnancy: Case studies
Handout 2. Case responses
Case A. Ms Tang’s dismissal – Breach of honesty?
This case is a real-life case from China which illustrates a problem faced by many women worldwide.132 The dismissal of Ms Tang is a clear case of sex discrimination on the grounds of pregnancy. The two options – abortion or dismissal – presented by Director Li clearly violate the principle of protecting pregnant women, outlined in the ILO Maternity Protection Convention, 2000 (No. 183) and national legislation in most Asian countries – including legislation in China.
The argument about “sincerity and honesty” in relation to civil service positions can be questioned given the prejudices that women workers of reproductive age face in finding a job. If Ms Tang would have lied about anything else but her marital status, her sincerity or honesty could be doubted. However, young women in the Chinese labour market know about the widespread discrimination of women on the ground of married status and pregnancy and therefore choose to hide their marriage status when applying for jobs. In such cases, courts in many countries consider that a woman’s dishonesty about her marital status or a pregnancy during or after recruitment cannot be used against her.
Factors, such as being single or married, being pregnant and/or having children or not, are not inherent requirements of a civil service job. In many countries it is unlawful to ask job candidates questions that are not related to the inherent requirements of a job during recruitment. However, in China and other Asian countries, private and public sector employers frequently ask such non-job related questions. Chances are high that honesty will lead to non- recruitment and will be used against female job applicants because gender discrimination in the labour market is still common, especially in countries where employers are responsible for covering the full cost of maternity protection when their employees get pregnant.
While laws in many countries prohibit the dismissal of pregnant women, in practice many problems remain. To ensure that pregnant women can be protected against dismissal, many courts apply the reversal of the burden of proof in the hearing of pregnancy discrimination cases. This means that dismissing a pregnant woman creates a “prima facie” presumption of discrimination on the grounds of pregnancy. To rebut the presumption, the employer needs to produce the evidence that the dismissal was not due to pregnancy, but due to another reason. In several countries the legal practice has become very strict and it is difficult for an employer to justify the dismissal of a pregnant woman.
Case B. Ms Savitree’s dismissal – Agreement to terminate contract during pregnancy?
This is a real-life Supreme Court case from Thailand.133 It illustrates a situation that is common in labour markets throughout the world, including in East and South-East Asia, even if many national laws prohibit dismissal on the grounds of pregnancy. Employers may often try to circumvent this prohibition by including clauses on voluntary resignation in case of pregnancy in labour contracts. Often this is accompanied by a declaration that the employee is single and should not marry for a given time period. These clauses are contrary to the purpose and intent of the law, and are explicitly prohibited in an increasing number of Asian countries, for example in the Chinese Employment Promotion Law (2007). Similar court
132 B. Liu: Unpublished training materials (Beijing, 2008). 133 Supreme Court of Thailand: Air Andaman Co.,Ltd vs. SurachetWiriyasirikul, Case No. 865/2548 (2006).
164 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 25 cases concerning clauses on voluntary resignation in case of pregnancy have been heard, among others, in Malaysia.134 However, the practice of verbal or written clauses on voluntary resignation in case of pregnancy is still widespread, leading to discriminatory dismissals of women who may not be aware of their legal rights.
In Ms Savitree’s case, the Supreme Court of Thailand rejected the argument of the Company (the Plaintiff) and held that clause 6.1 in the labour agreement had the objective of dismissing Ms Savitree because of her pregnancy. The clause is therefore contradictory to the Thai Labour Protection Act B.E. 2541. This law clearly stipulates: “An Employer shall not terminate the employment of a female Employee on the grounds of her pregnancy” (Section 43). Hence, the Court reasoned that clause 6.1 of the agreement is void pursuant to Section 150 of the Civil and Commercial Code. On these grounds the Court rejected the plaintiff’s appeal on this issue.
Case C. Non-renewal of a fixed duration contract during pregnancy - Cambodia
This is a real-life arbitration case from Cambodia.135 In the actual case the Arbitration Council rejected the demand from Ms Oeun Amara and the other claimants, and stated that there are no provisions in the Cambodian Labour Law which require an employer to extend the fixed duration contract (FDC) of pregnant workers upon the expiration of their contract.
From the perspective of Convention No. 111, this case represents an example of direct discrimination on the grounds of pregnancy and indirect discrimination on the grounds of sex. Article 5 of the Termination of Employment Convention, 1982 (No. 158) states that pregnancy should never constitute a valid ground for termination of employment. Similarly, Article 8(1) of the Maternity Protection Convention, 2000 (No.183) prohibits terminating the employment of a woman during her pregnancy, except on grounds unrelated to the pregnancy. These prohibitions cover any unilateral ending of the employment relationship by the employer, regardless whether the employer terminates an undetermined duration contract (UDC) or does not renew a fixed duration contract (FDC) in circumstances in which the work to which the employee has been signed continues to be available.
In the Star Knitting case the Arbitration Council considered that the prohibition of discrimination provided in Article 12 of the Cambodian Labour Law also covered a non- renewal of an employment contract on discriminatory grounds.136 The reason why the workers claim was nevertheless rejected was that in the Arbitration Council’s view Article 12 of the Labour Law does not prohibit discrimination on the grounds of pregnancy. However, the ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) continues to recall that discrimination on the grounds of pregnancy or maternity is a form of sex discrimination against women.137 Also the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) explicitly prohibits dismissal on the grounds of pregnancy as a form of discrimination against women (Article 11(2)). This rule was recently applied in Malaysia where a high court ruled that pregnancy cannot be used as an excuse to revoke an employment offer to a woman, and granted damages to the claimant.138 Therefore, the Arbitration Council could have ruled that the practice of the Star Knitting company
134 Federal Court of Malaysia: Fernandez vs. Malaysia Airline System, Part 2 Case 12 (2005). 135 Arbitration Council of Kingdom of Cambodia: Arbitral Award 117/11-Star Knitting. 136 In its words “the Law prohibits the employer from deciding not to hire or not to extend to hire workers based on discriminatory grounds”. 137 ILO: Giving globalization and human face: General survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, Report III (Part 1B), International Labour Conference, 101st Session, 2012. para. 784. 138 Malaysia, Shah Alam High Court: Noorfadilla Ahmad Saikin vs. Chayed Bin Basirun and five others (12 July 2011).
165 Equality and non-discrimination at work in Cambodia: Manual Exercise 25 violated the prohibition of sex discrimination provided in Article 12 of the Cambodian Labour Law and that the company should reinstate the workers.
In the Star Knitting case the employer openly admitted that the reason for non-renewal of Ms Oeun Amara’s FDC was her pregnancy. However, in most cases employers will not attribute their management decisions to discrimination. In these cases it is often difficult for the claimants to establish that the motives behind the non-renewal were discriminatory. The main reasoning behind the ILO normative policy to discourage use of successive FDC contracts for work that is not temporary in nature is specifically to prevent abuse and facilitate a review of the fairness of a dismissal and the reasons that have motivated the termination of employment. In principle, FDCs should only be used to procure labour for work that is temporary in nature, so that the question of fairness of dismissal does not arise.139 Cambodia may also wish to consider adopting rules on reversing or shifting of the burden of proof in discrimination cases to make it possible for claimants to successfully claim their rights to equal treatment.140 The ILO Maternity Protection Convention, 2000 (No. 183) explicitly stipulates that the burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer (Article 8(1)).
The issue of maternity leave and benefits was not addressed in the actual case. Under Article 182(1) of the Cambodian Labour Law all pregnant women employees are entitled to maternity leave for a minimum period of 90 calendar days. Entitlement to maternity benefits is limited to women with a minimum of one year of uninterrupted service in the enterprise (Article 183(4)). Whether the women work on FDCs or undetermined duration contracts (UDCs) should make no difference in treatment. If a renewal of the FDC causes the total length of their uninterrupted service in the company to exceed beyond one year, women workers should also be entitled to maternity benefits. The Arbitration Council has consistently used the cumulative total length of successive contracts as the basis for assessing entitlement to labour protection.141 The same principle should be applied to determine entitlement to maternity benefits. On the other hand, if the FDCs were renewed by the employer only one week, one month, or four months after their expiry, the Arbitration Council has not treated these contracts as uninterrupted service. It has however stated that practices to reemploy workers after a short break shall not be used to maliciously evade employers’ legal obligations.142
Research carried out in Cambodian garment sector indicates that some factories still use FDCs maliciously to deprive workers of maternity benefits. These practices are detrimental to the well-being of these women workers and their babies, and increase risks of conflict and dispute at the workplace. On the other hand, good practices are also emerging. To ensure the well-being of their workers, some companies pay maternity benefits also to those pregnant workers whose service does not exceed one year.143
139 As the first method of limiting recourse to FDCs, para. 3 (2) (a) of the Termination of Employment Recommendation, 1982 (No. 166) suggests to limit recourse to “cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration”. 140 Arbitration Council has confirmed in several cases that burden of proof in discrimination cases is on the claimant. The employer’s side is however asked to provide countervailing evidence to rebut the workers’ claims. See for example, Arbitration Council of Kingdom of Cambodia: Arbitral Awards 90/06-Evergreen, 112/06-River Rich, 01/07_Supreme, 75/07-GDM, 123/07-E Garment and 137/07-MPA Security. 141 Arbitration Council of Kingdom of Cambodia: Arbitral Award 10/03-Jacqsintex. In this case the issue in dispute dealt with the right to undetermined duration contracts. 142 Arbitration Council of Kingdom of Cambodia: Arbitral Award 70/11-Goldfame 143 ILO: Action-oriented research on gender equality and the working and living conditions of garment workers in Cambodia, (Social Protection and Gender (SPG) project, Phnom Penh, 2012); Allard K. Lowenstein International Human Rights Clinic: Tearing apart at the seams: How widespread use of fixed-duration contracts threatens Cambodian workers and the Cambodian garment industry (Yale Law School, New Haven, 2011).
166 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 25
Exercise 25. Termination of employment during pregnancy: Case studies
Handout 3. Law and practice in Cambodia
Maternity protection under Cambodian law
Maternity leave “…woman shall have the right to take maternity leave…” (Constitution, Article 46.2).
“In all enterprises covered by Article 1 of this law, women shall be entitled to a maternity leave of ninety days”.(Labour Law, Article 182.1).
Cash and “…woman shall have the right to take maternity leave with full pay and with medical no loss of seniority or other social benefits”. (Constitution, Article 46.2). benefits “During the maternity leave as stipulated in the preceding article, women are entitled to half of their wage, including their perquisites, paid by the employer. Women fully reserve their rights to other benefits in kind, if any. Any collective agreement to the contrary shall be null and void. However, the wage benefits specified in the first paragraph of this article shall be granted only to women having a minimum of one year of uninterrupted service in the enterprise”. (Labour Law, Article 183).
Health “After the maternity leave and during the first two months after returning protection to work, they are only expected to perform light work”. (Labour Law, Article 182.2).
“…..the pregnant and women workers who come back to work after delivering baby during first two months shall [not] handle any charge exceeded 5 kilograms”.(Prakas No. 124 issued 2001 on the handing charge by natural force, article 3).
Employment “A woman shall not lose her job because of pregnancy…” (Constitution, protection and Article 46.2). non- discrimination “The employer is prohibited from laying off women in labour during their maternity leave or at a date when the end of the notice period would fall during the maternity leave”. (Labour Law, 183.3).
“…woman shall have the right to take maternity leave … with no loss of seniority…” (Constitution, Article 46.2).
Breastfeeding “For one year from the date of child delivery, mothers who breastfeed their children are entitled to one hour per day during working hours to breastfeed their children. This hour may be divided into two periods of thirty minutes each, one during the morning shift and the other during the afternoon shift. The exact time of breastfeeding is to be agreed between the female employee (mother) and the employer. If there is no agreement, the periods shall be at the midpoint of each work shift”. (Labour Law, Article 184).
“Breaks for breastfeeding are separate from and shall not be deducted from normal breaks provided for in the labour law, in internal regulations of the establishment, in collective labour agreements, or in local custom
167 Equality and non-discrimination at work in Cambodia: Manual Exercise 25
for which other workers in the same category enjoy them”. (Labour Law, Article 185).
“Managers of enterprises employing a minimum of one hundred women or girls shall set up, within their establishments or nearby, a nursing room and a crèche (daycare center). If the company is not able to set up a crèche on its premises for children over eighteen months of age, female workers can place their children in any crèche and the charges shall be paid by the employer”. (Labour Law, Article 186).
Special leave “The employer has the right to grant his worker special leave during the (e.g. for fathers event directly affecting the worker's immediate family. If the worker has after not yet taken his annual leave, the employer can deduct the special leave childbirth) from the worker's annual leave. If the worker has taken all his annual leave, the employer cannot deduct the special leave from the worker's annual leave for the next year. Hours lost during the special leave can be made up under the conditions set by a Prakas of the Ministry in Charge of Labour”. (Labour Law, Article 171).
Maternity: Protection under the law, good practices and common bottlenecks - Cambodia
In Cambodia, national provisions on maternity protection are included in the Constitution, the Labour Law and Prakas No. 124. More and more companies in Cambodia also recognize the benefits that improved maternity protection can bring to the well-being, commitment and productivity of the company’s female workforce, and implement good practices beyond the legal requirements. However, in some companies practices still fall short of the requirements of the law. The ILO Social Protection and Gender (SPG) project and the Better Factories Cambodia (BFC) programme have identified the following good and bad practices in Cambodian garment factories.
Compliance – Requirements on maternity protection in Cambodian law
• Providing maternity leave of 90 days for all women. • Paying women workers with a minimum of one year of uninterrupted service in the enterprise maternity benefits consisting of half of their wages including all benefits. Living allowances shall be paid in full, if applicable. • Allowing women to only perform light work after the maternity leave and during the first two months after returning to work. • Never laying off women during pregnancy or maternity leave or at a date when the end of the notice period would fall during the maternity leave. • Providing female workers (new mothers) with babies aged 12 months or younger with one hour per day during working hours to breastfeed their children. • Setting up a nursing room and a daycare center (for children aged 0-3 years) in enterprises employing a minimum of one hundred women or girls. • Paying the costs of external daycare for children over eighteen months of age in case the company daycare center is not able to provide daycare for these children. • Enabling male workers to take special leave deducted from their annual leave when their wives give birth.
Good practices – Company practices providing protection beyond the minimum requirements of the law • Allowing pregnant workers to leave the factory five minutes earlier than other workers at lunch and at the end of the day to avoid the crowds. • Providing pregnant workers paid time-off each month for prenatal checkups from the first month onwards.
168 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 25
• Allowing pregnant workers to do lighter work. • Paying maternity benefits consisting of half of the wage including all benefits and full living allowances, if applicable, also to those workers whose service with the company does not exceed one year. • Allowing workers to delay coming back to work after the maternity leave for one or two months, either with a monthly allowance or without pay. • Providing new mothers with breastfeeding training. • Allowing male workers to take special leave when their wives give birth without deducting the special leave from their annual leave.
Common bottlenecks – Practices falling short of the minimum requirements of the law • Paying maternity benefit only at 50 per cent of the worker’s basic wage (instead of 50 per cent of actual pay including all benefits and 100 per cent of the living allowance). • Depriving workers on successive fixed duration contracts (FDCs) with one year of uninterrupted service in the company of maternity benefits. • Requiring workers on FDCs to take a short period of leave between contracts to maliciously evade legal obligations to provide maternity benefits. • Increasing workload of pregnant workers to persuade them to quit. • Reducing the seniority or other benefits after women workers’ return to work after the maternity leave. • Failing to provide female workers who breastfeed their children with one hour paid time-off for breastfeeding or to have a functioning breastfeeding room in the factory. • Failing to set up a nursing room and a daycare center (for children aged 0-3 years) in enterprises employing a minimum of one hundred women or girls. • Refusing to pay the costs of external daycare for children over 18 months of age in case the company daycare center is not able to provide daycare for these children. • Failing to pay maternity benefit as a lump sum before the maternity leave, including payment of the maternity leave only when workers come back to work, or requiring workers to personally collect the benefit on a monthly basis. • Failing to renew FDCs of pregnant workers, unless the employer can demonstrate that the contract is not renewed for reasons related to the nature of the work and unrelated to maternity.
Source: ILO: Action-oriented research on gender equality and the working and living conditions of garment factory workers in Cambodia, Social Protection and Gender (SPG) project (Phnom Penh, 2012); Information provided by the Better Factories Cambodia Programme (Phnom Penh, 2012).
169 Equality and non-discrimination at work in Cambodia: Manual Exercise 26
Exercise 26. Retrenchment: Case discussion
Instructions for trainers
Aim – To analyze the discriminatory effects of retrenchment policies and discuss discrimination on the grounds of marital status and sex.
Target group – Employers’ and workers’ representatives, labour inspectors and other audiences interested in ensuring that company retrenchment policies and practices are non- dscriminatory.
Time – 20 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise and distribute Handout 1 to participants. Divide them into small groups. Ask the groups to read the case study and discuss the questions. Tell each group to prepare a presentation on the case study and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask one group to present the case. Invite the other participants to ask questions, or add comments on the case. Facilitate the discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • When retrenchment measures are needed, it is important to ensure that all retrenchment policies, procedures and practices are fair and non-discriminatory. Any actions that could unjustifiably and disparately have negative effects on specific groups of employees, such as women or ethnic groups should be removed. • Statistical data on retrenchments shows that women are still more likely to be laid off than men in case of economic restructuring or downturns. For example in China, data from 2005 show that, during the economic restructuring in the 1990s, the total employment rate of men decreased from 90 to 81.5 per cent (a drop of 8.5 per cent), whereas the female rate decreased from 86.3 to 63.7 per cent (a drop of 12.6 per cent). Asian women workers also were the earliest and most serious casualties of the global economic crisis which began in 2008, especially those engaged in casual, temporary or contract work or other informal employment at the end of global supply chains.144 • The tendency of employers to lay off women first seems to reflect the traditional assumption that they are secondary income earners. However, women may earn the main family income and many families depend on their income.
144 National Bureau of Statistics and All-China Women’s Federation: 2nd National survey on the social status of Chinese women (Beijing, 2005); ILO; ADB: Women and labour markets in Asia: Rebalancing for gender equality (Bangkok, 2011).
170 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 26
Exercise 26. Retrenchment: Case discussion
Handout 1. Case
Retrenchment at Allianz Life Insurance – Republic of Korea
In July 1998, a director of the Allianz Life Insurance (the Company) Seoul Head Office notified branch heads that workforce cuts were inevitable due to the financial difficulties of the Company. Therefore, they should persuade one spouse of married couples who were working for the Company to leave, reasoning that such retirement would not be an immediate threat to the families’ living. The director also sent a list of the “married couple workers” to each branch. Branch heads repeatedly asked the husbands of the married couples to persuade their wives to retire. They even told the workers that “they would be unfavourably treated if their wives did not leave the Company”. Between 3-24 August 1998, 86 of the total of 88 married couples in the Company had one spouse tender a resignation letter.
The trade union strongly protested against married women being the first target of dismissal and distributed messages that urged employees not to succumb to the pressure of the Company. The union requested the Company to meet for a working-level discussion on the forceful dismissals, but the Company replied that it had no idea about such dismissals. Alleging that the employer violated the Korean Labour Standards Act, 79 retired workers made a complaint against the head of the Company before the Seoul Regional Labour Administration.
Questions for discussion: • Who do you think resigned: Men, women or both? • Does this case involve discrimination? On which grounds?
171 Equality and non-discrimination at work in Cambodia: Manual Exercise 26
Exercise 26. Retrenchment: Case discussion
Handout 2. Case responses
Retrenchment at Allianz Life Insurance – Republic of Korea
The case is a real-life case from the Republic of Korea.145 It illustrates how company retrenchment policies and decisions may have a disproportionately negative effect on certain groups of employees – in this case married women. In case retrenchment measures are needed, for example, due to changes in business volume, it is important to pay specific attention to non-discriminatory design and implementation of the austerity arrangements. All retrenchment policies, procedures and practices need to be fair and non-discriminatory.
In the actual case of Allianz Life Insurance (the Company), the Korea Supreme Court ruled that the 86 persons who had been forced into retirement had been unfairly dismissed. The married couples had been subject to repeated pressures that one of them should retire from the Company or they might be unfavourably treated. Therefore, the request by the middle- level managers to tender the letter of resignation was seen as a forceful act. The Court held that the Company had violated Article 31 of the Labor Standards Act, which specifies justifiable causes and procedures of dismissal as well as the requirements for corporate dismissal. As the dismissed persons were spouses of a married couple, and most of them were women, the retrenchment policy constituted discrimination on the grounds of marital status and sex.
145 “The Case of Allianz Life Insurance: Supreme Court 2002 Da 19292 (Ruling: July 26, 2002)”, in Korea International Labour Foundation (KOILAF): “Court rulings on cases of dismissal for restructuring purpose” in Labor Today, No. 3, Sep. 2002.
172 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 27
Exercise 27. Different retirement age for women and men: Case study
Instructions for trainers
Aim – To recognize different retirement age for women and men as a form of sex discrimination.
Time – 30 minutes
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise with the participants, and divide them in small groups. Distribute Handout 1 and ask the groups to discuss the case study, prepare a presentation and select a spokesperson to present it for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask volunteers to give a brief presentation on the case. After each presentation, invite the others to add comments on the case. Facilitate discussion, add points not mentioned by the groups and correct any misunderstandings using Handout 2 with the case responses as needed.
Ø Roundup the discussion as follows: • Obliging women to retire earlier than men is a form of direct discrimination against women. In East and South-East Asia this form of discrimination is still quite common. It can be stipulated in the law such as in China and Viet Nam or emanate from company level regulations and practices (as in this exercise). • The official retirement age in Cambodia for civil servants ranges from 55 to 60 depending on the level of the position. In the private sector, the retirement age is set in Social Security Law with the age of 55 years old and in internal company regulations beyond that age. Employers should not require women employees to retire earlier than men workers, if women wish to continue working. • A lower retirement age for women was designed in the past to protect them and to acknowledge their contribution to unpaid household and family care. However, the practice is outdated and leads to unintended negative effects on women’s income during and after their working life. • Negative impacts of early retirement are the pay inequities at the end of women’s career. As women need to stop paid work and retire earlier than men, they cannot progress into senior, higher-paying jobs. • Another disadvantage of early retirement is access to fewer social security benefits, as the level of benefits is usually calculated on the basis of the total number of years in employment or on the income earned during the last three or five years in employment when workers are eligible to enter more senior positions. For example, in Ms Hasibuan’s case she was not eligible for the same benefits as her male colleagues, because her age prevented her from qualifying for the pension.146
146 N. Haspels; E. Majurin: Work, income and gender equality in East Asia (Bangkok, ILO, 2008).
173 Equality and non-discrimination at work in Cambodia: Manual Exercise 26
Exercise 27. Different retirement age for women and men: Case study
Handout 1. Case
Early retirement of Ms Hasibuan – Indonesia
On 27 April 1987, Ms Hasibuan received a notice from her employer Indonesia Toray Synthetics (the Company) stating that she would be required to resign from her job as she would be turning 40 the following month. The Mutual Working Agreement 1954 (the Working Agreement) under which Ms Hasibuan was employed included a mandatory age for retirement of 55 years for men and 40 years for women. For Ms Hasibuan, this meant that she would not be eligible for the same benefits as her male colleagues, because her age would prevent her from qualifying for the pension. Ms Hasibuan felt unfairly treated, and applied to the Court for an order requiring her employer to change the mandatory retirement age so that it would be the same for men and women. She also asked the Court to issue an order requiring her employer to employ her until she reached the age of 55. Ms Hasibuan argued that the Working Agreement breached Article 2 of the 1969 Labour Act, which states that employers should not discriminate on the basis of sex, and also violated Indonesia’s international obligations under the Convention on the Elimination of Discrimination against Women (CEDAW).
The Company argued that the different retirement ages for women and men stipulated in the Working Agreement were not unlawful discrimination, but acceptable protection measures. They argued that the biological difference between men and women justified a lower age of retirement for women. Women, for example, were more likely to experience work-related stress and illness. The Company argued that the purpose of the provision was protective, similar to legislation that prohibits women from working in mines or at night. Further, differences in retirement ages could also be found among other groups of employees in the workforce such as government positions where women were subject to a lower retirement age. This, the Company argued, was allowed as acceptable discrimination.
Questions for discussion: • Do you think requiring female employees to retire when they turn 40 years and male employees when they turn 55 is discrimination? • What are your views on the Company’s arguments about the need to protect women? • What is the situation in Cambodia, your company or organization? Are changes needed or not and why?
174 II. Exercises 4. Exercises to discuss discrimination at different stages of the employment cycle Exercise 26
Exercise 27. Different retirement age for women and men: Case study
Handout 2. Case responses
Early retirement of Ms Hasibuan – Indonesia147
In Ms Hasibuan’s case the Court decided in her favour. It ordered the company to immediately amend the Working Agreement making the mandatory retirement age the same for men and women and imposed a daily fine for any delay in making the requisite changes. The Court also ordered the company to maintain Ms Hasibuan as an employee until she reached the new retirement age of 55 years.
In its decision, the Court expressly adopted the definition of discrimination used in the Convention on the Elimination of Discrimination against Women (CEDAW). This decision was very progressive for women’s rights in the country. The Court applied CEDAW directly and did not accept the argument that CEDAW must adapt to local social norms. Furthermore, the Court recognized the importance of women’s labour not only to themselves, but also to the family and society.
In this case the Court heard expert evidence with regard to biological and psychological differences between men and women that sought to establish that women were more likely than men to suffer mental and physical illnesses in the context of work. The Court did not find this argument persuasive. The case is an excellent precedent for advocates in any situation where a “mental or physical difference” argument is being used to support discrimination against women.
147 C. Forster et al: A digest of case law on the human rights of women (Asia Pacific) (Chiang Mai, 2003).
175 Equality and non-discrimination at work in Cambodia: Manual Exercise 28
5. Exercises to review strategies for equality promotion
5.1 Legislation and local regulations
Exercise 28. Action against sexual harassment
Instructions for trainers
Aim – To identify what type of measures are needed to effectively implement the requirements of Convention No. 111 through a case analysis of regulations on sexual harassment in China, Indonesia, Mongolia and Viet Nam.
Target group – Policy-makers and lawmakers and other audiences interested in making non-discrimination law more effective.
Time – 60-70 minutes.
Seating arrangements – Small group seating around tables enabling participants to work in groups of three to six persons.
Training materials and preparation – Prepare flipchart papers and marker pens for all groups. Note that this case discusses the current situation in Cambodia, China, Indonesia, Mongolia and Viet Nam, but can be used in any country. Trainers should know the legal status quo on sexual harassment in employment in their own country and collect information on contacts for assistance and legal aid for distribution at the end of the session.
Steps.
Step 1 – Introduction and discussion –5-15 minutes)
Ø Share the aims of the exercise with participants. Explain that the exercise discusses the implementation of Convention No. 111 at national level through a case study on the implementation of national provisions on sexual harassment in four Asian countries.
Note to trainers: If the group has already completed Exercise 23. Identifying sexual harassment at the workplace: Case studies, the discussion in Step 1 can be kept very brief by recalling the earlier discussion on the topic.
Ø Start by asking the participants whether sexual harassment at work is legally prohibited in Cambodia and what type of acts constitute sexual harassment. Invite volunteers to share their views, and write the examples given on a flipchart. After a few examples, sum up the discussion by noting that sexual harassment can be physical (sexual violence or unwelcome physical contact), verbal (comments, jokes or intrusive questions of a sexual nature about one's private life) or non-verbal (staring, leering, whistling or sexually suggestive gestures, written or visual materials or graphics).
176 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 28
Ø Discuss and explain the three main forms of sexual harassment: sexual assault and rape, sexual blackmail (‘quid pro quo’ or ‘this for that’), and creating a hostile working environment, using examples from Exercise 25. Identifying sexual harassment at the workplace: Case studies, as needed.
Step 2 – Implementation of laws and regulations on sexual harassment –30-40 minutes)
Ø Divide the participants in small groups and distribute Handout 1. Ask them to discuss the questions and prepare a brief presentation of three minutes maximum in plenary. Explain that in most countries secondary rule making plays an important role for the implementation of national laws. Secondary rules are most often regulations (prakas) issued by administrative authorities under the central government. In some countries such as China secondary rules may also be passed by province level congresses and governments.
Ø When the groups are ready, reconvene in plenary and ask each group to present the outcome of their discussion. Invite participants to share their views and facilitate discussion. Highlight the observations made by the groups and sum up the key features of the provincial regulations in China and the national provisions in Indonesia, Mongolia and Viet Nam, using Handout 2 with the case responses as needed.
Step 3 – Implementation of national laws on discrimination – 5 minutes
Ø After finishing the discussion on sexual harassment, point out that the same principles apply to the overall implementation of national discrimination legislation. Ask participants to brainstorm and make a list of essential elements in non-discrimination legislation on a flipchart, using the discussion on sexual harassment in the previous steps. Summarize some of the main elements as appropriate from the list in the Handout 2.
Step 4 – Roundup – 5-10 minutes
Ø Round up the discussion as follows: • The principles of non-discrimination and equality can only be implemented and enforced effectively if national and/or lower level law provide a clear definition of the type of action that is prohibited and the liabilities and responsibilities of the different actors. • Sexual harassment at work is a serious form of sex discrimination. The ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) has highlighted the importance of addressing sexual harassment within the requirements of Convention No. 111 and encourages member States to take practical action.148 To fulfill the requirements of Convention No. 111, member States need to ensure effective implementation of non-discrimination law at local level and adopt policy measures that show concrete results in elimination of discrimination and realization of equal opportunity and treatment at work for everybody. • Action on sexual harassment against women is an area where substantial developments have taken place in many countries in Asia over the past years. The
148 ILO: “General observation on Convention No. 111: Discrimination (Employment and Occupation), 1958,” in Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 91st Session, Geneva, 2003, pp. 463-464.
177 Equality and non-discrimination at work in Cambodia: Manual Exercise 28
provincial measures for implementing the Law on the Protection of the Rights and Interests of Women (2005) in China show how local regulations specify what needs to be done to ensure effective implementation of national non-discrimination standards in practice. In April 2012, employer responsibility for preventing and stopping sexual harassment against women, which was earlier only stipulated at provincial level, was also included in the national Provisions on Labour Protection of Women Workers passed by the Chinese State Council. Another example is Pakistan where the Protection against Harassment of Women at the Workplace Act (2010) is supplemented by a Code of Conduct included in the Schedule to the Act, which outlines the measures that employers should take to address sexual harassment at the workplace as part of their management policy.149 • Both women and men need protection against sexual harassment under the law. • It is important to develop and promote both legal and practical measures to prevent and redress acts of sexual harassment in the workplace and in society. Voluntary guidelines for employers are a step in the right direction, but usually these are not sufficient to ban sexual harassment practices in workplaces.
& For further reading, see: N. Haspels et al.: Action against sexual harassment at work in Asia and the Pacific (Bangkok and Geneva, ILO, 2001).
149 Government of Pakistan: Protection against Harassment of Women at the Workplace Act and Code of Conduct (2010), http://www.aasha.org.pk (accessed 22 Jan 2011).
178 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 28
Exercise 28. Action against sexual harassment
Handout 1. Case analysis
Questions for discussion: 1. Read the national and provincial regulations in China. What practical measures do the provincial regulations add to the national legislation? What are some of the drawbacks of these legal provisions? 2. Read the national legal provisions relating to sexual harassment from Cambodia, Indonesia, Mongolia and Viet Nam and discuss whether these are adequate to prevent and address instances of sexual harassment. 3. What provisions are needed at the national, provincial or workplace level to make the prohibition of sexual harassment more effective and enforceable in Cambodia, company or organization?
1. Provisions on sexual harassment in Chinese national laws
Law on the Protection of the Rights and Interests of Women (revised in 2005) Article 40 – Sexual harassment against women is prohibited. The victims have the right to lodge a complaint to the unit or organ concerned. Article 58 – If anyone commits sexual harassment or domestic violence against a woman to violate this Law, and if the act constitutes a violation of the public security administration, the victim may require the public security organ to give the violator an administrative punishment or may initiate a civil action in the people’s court.
Provisions on the Labour Protection of Women Workers (2012) Article 11 – In workplace, the employer shall prevent and stop sexual harassment against women workers.
Criminal Law (1997) Article 237 – Whoever acts indecently against or insults a woman by violence, coercion or any other forcible means shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.
2. Summary of selected provincial implementation regulations in China
A. Anhui province. The Anhui provincial regulation on implementing the Law on the Protection of Rights and Interests of Women states, “it is forbidden to carry out sex harassment purposely against the will of the women in forms including body contacts, language, text, picture (video) and electronic information with sex contents or related with sex” (Article 34). This provision defines sexual harassment as an intentional act, unwanted by the woman, and lists the types of acts that may constitute sexual harassment. The authorities responsible for investigating cases of sexual harassment in Anhui are the public security departments (the Police) and the Civil Courts, who can try cases of sexual harassment using the civil process, in the same way as they try other cases of violating the security administration (Article 42).
B. Guangdong province. In Guangdong, the provincial regulation on implementing the Law on the Protection of Rights and Interest of Women defines sexual harassment in the same way as the above regulation in Anhui (Article 29). In addition, in Guangdong employing units are
179 Equality and non-discrimination at work in Cambodia: Manual Exercise 28 required to ensure a good working environment and to establish necessary monitoring and grievances systems to prevent and stop sexual harassment towards women. The victims of sexual harassment have the right to file the case to their employing unit. If the act has violated security administration, the department of public security can give an administrative penalty to the violator. If the act constitutes a crime, civil sanctions will be applied in accordance with the law. (Article 44.)
C. Sichuan province. The Sichuan provincial methods on implementing the Law on the Protection of Rights and Interest of Women prohibit sexual harassments towards women “in forms of language, text, picture, information and body contact,” and oblige employing units and employers to take active measures at the workplace to prevent sexual harassment (Article 33). The victim of sexual harassment can file a complaint against the violator at the department of security or file a case in the Civil Court. If the act constitutes a crime, criminal sanctions apply. The employing unit or the employer will also bear civil liability to pay damages to the victim due to physical and spiritual suffering and damage caused to her reputation due to sexual harassment. (Article 47).
3. Legal provisions related to sexual harassment in Cambodia
Labour Law (1997) Article 172 – All employers and managers of establishments in which child laborers or apprentices less than eighteen years of age or women work, must watch over their good behavior and maintain their decency before the public. All form of sexual violation (harassment) is strictly forbidden.
Penal Code (2009) Article 246: Sexual Harassment – Every act of touching, caressing, fondling of sexual organ or other sexual parts of the others, who do not accept this act voluntarily, or forcing the other person to commit such act on self or third person for the purpose of sexual arousal or pleasure of the perpetrator is considered as sexual harassment. Sexual harassment act is punishable by 1 (one) to 3 (three) year imprisonment term and a fine of Riels 2,000,000 (two million) to 6,000,000 (six million).
4. Legal provisions related to sexual harassment in Indonesia
Law Number: 13, 2003 on Manpower Article 38 (2) – Everyone has the right to free choice of employment and the right to just conditions of work.
Criminal Code (KUHP), Law No. 27 of 1999, Chapter XIV Crimes against decency Article 282 (1) – Any person who either disseminates, openly demonstrates or puts up a writing of which he knows the content or a portrait of object known to him to be offensive against decency, or produces, imports, conveys in transit, exports or has in store, or openly or by dissemination of a writing, unrequestedly offers or indicates that said writing, portrait or object is procurable, in order that it be disseminated, openly demonstrated or put up, shall be punished…. Article 285 – Any person who by using force or threat of force forces a woman to have sexual intercourse outside of marriage, shall, being guilty of rape, be punished by a maximum imprisonment of 12 years. Article 289 – Any person who by using force or threat of force forces someone to commit or tolerate obscene acts, shall, being guilty of factual assault of the chastity, be punished by a maximum imprisonment of nine years.
180 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 28
5. Legal provisions related to sexual harassment in Mongolia
Law on Promotion of Gender Equality (2011) Article 4.1.7 – “sexual harassment” [is] an unwelcome sexual advance made in verbal, physical and/or other forms, intimidation, threat and/or other forms of coercion that makes sexual intercourse an unavoidable option for the victim or that creates an unbearable hostile environment and/or causes damage in terms of the person’s employment, professional, economic, psychological and/or any other form of well-being. Article 11.4. – In order to prevent and keep the workplace free of sexual harassment and to maintain zero tolerance of such harassment, an employer shall take the following measures: • Incorporate in organizations’ internal procedures specific norms for prevention of sexual harassment in a workplace and the redress of such complaints. • Design and conduct a program on training and retraining geared toward creating a working environment free from sexual harassment, and report on its impact in a transparent manner.
6. Legal provisions related to sexual harassment in Viet Nam
Labour Code (2007) Article 111 (1) – Gender discrimination against female employees and abuse of their honor and dignity by the employer are strictly forbidden. The employer must observe the principle of gender equality in recruitment, utilization, pay raise and remuneration for work performed.
Criminal code (2000) Article 111 Rape – Those who use violence, threaten to use violence, or take advantage of the victims’ state of being unable for self-defense or resort to other tricks in order to have sexual intercourse with the victims against the latter’s will shall be sentenced to between two and seven years of imprisonment. Article 113 Forcible sexual intercourse – Those who employ trickery to induce persons dependent on them or persons being in dire straits to have sexual intercourse with them against their will shall be sentenced to between six months and five years of imprisonment.
181 Equality and non-discrimination at work in Cambodia: Manual Exercise 28
Exercise 28. Action against sexual harassment
Handout 2. Case responses
Legal provisions on sexual harassment in China
The three Chinese provincial regulations on sexual harassment provide a good example of measures that need to be taken at local level to implement and enforce the broad principles set in the national law. The regulations in all three provinces define types of sexual harassment and specify methods for redress. In addition, in Guangdong and Sichuan employers are required to take active measures for the prevention of sexual harassment.
The key features in Anhui, Sichuan and Guangdong provincial regulations to implement the law against sexual harassment are: • Definition of acts constituting sexual harassment. • Responsible authorities. • Channels for seeking legal redress. • Sanctions (civil and criminal). • Employer responsibility for taking active measures to prevent sexual harassment and to ensure a workplace free from sexual harassment. • Employer responsibility for establishing a monitoring and grievance mechanisms.
An overall drawback of the law and provincial regulations in China is that only women but not men are protected from sexual harassment. In addition, two local regulations define sexual harassment as an “intentional act, unwanted by the woman”. This definition does point out, that it is behaviour that is unwanted and unwelcome by the recipient. However, the reference to intent is less well chosen, given that the intent of the harasser is not determinative. In most jurisdictions it is the recipient who determines whether the conduct of a sexual nature is welcome or not. This is important as many persons who commit acts of sexual harassment consider that there is nothing wrong with their conduct.
Legal provisions on sexual harassment in Cambodia, Indonesia, Mongolia and Viet Nam
The legal provisions for prohibiting sexual harassment in these countries are a start in the right direction especially those in Mongolia. However, they seem rather broad, unless it involves the more overt and physical forms of sexual violations like forced intercourse. In case national and decentralized laws and regulations are virtually silent about sexual harassment at the workplace and only prohibit outright sexual assault and rape, other measures to start addressing the issue may include: Clarifying the concepts in judicial practice, issuing authoritative interpretations to guide the implementation of the law, or using voluntary measures to promote compliance with the law.
Examples of voluntary measures are the 1999 Code of Practice on the prevention and eradication of sexual harassment in the workplace in Malaysia and the 2011 Guidelines on sexual harassment at the workplace in Indonesia, which elaborate the nature and forms of sexual harassment and provide practical guidance to employers and workers on the steps to take to prevent and respond to instances of work related sexual harassment. Such codes and guidelines are useful for companies committed to take action but may not be sufficient to adequately eradicate sexual harassment at workplaces due to their voluntary nature.
182 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 28
Essential elements in non-discrimination legislation • Definition of prohibited discrimination: Direct, indirect and harassment. • Explanation of exemptions to what is prohibited discrimination. • List of grounds of prohibited discrimination – normally expanding with time. • Scope of protection: employment and occupation at all stages of the employment cycle. • Designation of supervisory responsibilities to competent national authorities such as labour inspection services. • Affirmative action, protective measures and reasonable accommodation. • Employer liability and responsibility (including positive responsibilities to act to prevent sexual harassment). • Sanctions and remedies. • Protection against reprisal and victimization. • Shifting or reversing the burden of proof. • Adoption and implementation of equality policies or plans at the workplace. • Collection of relevant information and statistical data at different levels.
183 Equality and non-discrimination at work in Cambodia: Manual Exercise 29
Exercise 29. Discriminatory effects of laws and policies: Case studies
Instructions for trainers
Aim – To identify possible discriminatory effects of laws and regulations and to discuss the importance of balancing the interests of employers and workers for well-functioning labour markets.
Target group – Policy-makers, lawmakers and other audiences interested in preventing or repealing hidden discriminatory effects of laws and policies.
Time – 40 minutes.
Seating arrangements – Plenary or small group seating around tables enabling participants to work in groups of three to six persons.
Training materials and preparation – Prepare flipchart papers and marker pens for all groups. Select the most relevant case study for the participants prior to the session.
Steps.
Ø Explain the aim of the exercise. Divide the participants into small groups and give the groups the selected case for discussion. Distribute Handout 1 and the flipchart papers. Ask participants to read, discuss, prepare a presentation and select a spokesperson to present it for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask for volunteers to present each case. Invite other participants to add or comment. Facilitate discussion, add points not mentioned and present the key learning points outlined in Handout 2 highlighting the points raised in the presentations by the groups.
Ø Roundup the discussion as follows: • After ratification of Convention No. 111 member States should repeal any discriminatory provisions in their national laws and administrative regulations, and ensure that new laws do not cause discriminatory effects on any groups of workers. • While many countries in the Asian region are in the process of aligning their laws and administrative practices with the Convention, discriminatory provisions can still be found in national legislations. Many countries also lack a systematic review mechanism to ensure that new laws do not have discriminatory effects. • Identifying discriminatory legal provisions is often not easy, especially in the case of indirect discrimination. However, statistical analysis of different groups in the labour market will show whether employment laws, rules or practices have negative effects on certain groups based on sex, ethnicity, social origin or other grounds under Convention No. 111 or other grounds covered in national legislation. • This evidence can then be used to start a process of tripartite or bipartite consultations and negotiations between governments, workers, employers and their organizations to strike a balance between meeting employers’ needs for flexibility with workers’ needs for protection.
184 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 29
Exercise 29. Discriminatory effects of laws and policies: Case studies
Handout 1. Cases
Case A. Small enterprise development and employment conditions
A country in Central Asia has an emerging private sector, with more and more people starting their own business. Most of the employees working in these small and medium enterprises (SMEs) are women. The employers’ organization representing some of these SMEs is convinced that administrative requirements and the burden of complying with the existing labour laws are too demanding for these budding SMEs, and that it will reduce their capacity to generate employment. As part of its “regulatory streamlining” campaign, the employers’ organization starts lobbying to amend the existing labour laws with a view to exempt SMEs from the scope of application of these laws. Adoption of the exemption would mean that SMEs would not need to abide by the national standards on minimum wage, working time, occupational safety, etc. and would also not need to contribute to social insurance schemes.
Questions for discussion: 1. If you are a legislator in Cambodia, how would you respond to the request made by an employers’ organization to exempt SMEs from the labour laws? 2. The employers’ organization argues that promoting SME growth and boosting employment creation requires looser regulation on SMEs. Is this argument valid? How will the workers’ organizations respond to this argument? 3. If such an exemption would be accepted, would it lead to discrimination in the labour market? On which grounds? 4. Would passing such an exemption be possible in Cambodia today? Are legal instruments or institutional mechanisms available that could prevent it from happening?
Case B. Domestic workers and employment conditions
Domestic work conducted in private households for others provides employment to tens of millions of workers. Nevertheless, it is often not perceived as “employment” and for this reason domestic workers worldwide are often excluded from labour laws regulating workers’ wages, working hours, days of leave and other working conditions.
Statistical data on domestic workers’ remuneration indicates that this occupation is among the lowest paid occupations in any labour market. Estimates indicate that domestic workers typically earn less than half of average wages – and sometimes no more than about 20 per cent of average wages. However, working hours are long and working days unlimited. Average weekly hours of workers employed in private households totaled 48 hours in Asia, the highest average worldwide (for example, 53.3 hours in the Philippines and 50.9 hours in Indonesia in 2007; and 49.8 hours in Thailand and 49.1 hours in Viet Nam in 2002). In most countries there is no obligation on employers to contribute payments to social security coverage for their domestic workers, and in some countries they are not allowed to join workers’ organizations or become leaders of such organizations, especially if they are cross-border migrants.
Recent ILO estimates place the number of domestic workers at around 53 million. As this work is often hidden and unregistered the total number of domestic workers could be as high as 100
185 Equality and non-discrimination at work in Cambodia: Manual Exercise 29 million. Around 83 per cent of these workers are women and girls and many are migrants who moved from rural areas to cities within their own country and/or across borders.150
Questions for discussion: 1. Many employers of domestic workers argue that they would not be able to employ domestic workers if their employment and working conditions would be regulated under the labour law. Is this a valid argument? What are the views of workers’ organizations on this issue? What are the views of domestic workers? 2. Does the situation of domestic workers constitute discrimination? On what grounds? 3. What is the situation in Cambodia? Is domestic work covered under the law, and if yes, how? Can domestic workers join trade unions? Is the situation the same or different for migrant workers from other countries?
150 ILO: Remuneration in domestic work; Working hours in domestic work; Global and regional estimates on domestic workers, Domestic work: Policy briefs 1, 2 and 4 (Geneva, Conditions of Work and Employment Programme, 2011); RumpunGemaPerempuan: Study on domestic workers in Pamulang (Tangerang), Bekasi, Depok and Kemuning (PasarMinggu) (Jakarta, 2008) and Study on domestic workers in KemuningPasarMinggu, Pamulang, Parung, Depok and Rangkap (Jakarta, 2005).
186 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 29
Exercise 29. Discriminatory effects of laws and policies: Case studies
Handout 2. Case responses
Case A. Small enterprise development and employment conditions
The case is based on a real-life situation in the Islamic Republic of Iran.151 Similar situations are common in many countries, most often when the adoption of new labour laws or extension of labour protection to hitherto uncovered groups in informal employment is under public discussion and debate. Employers often argue that they can only generate employment and economic development if companies do not face too many obstacles to their establishment or growth. The employers’ concern can be legitimate when the informal businesses are small or the employers may not be very well-off themselves.
One important issue that a legislator should consider when preparing labour laws, or exemptions from existing laws, is whether the proposed law, if adopted, could to lead to increased inequality and social exclusion. Labour market information, in particular the workforce composition across various sizes of companies, is obviously important in this regard. In this case study, the proposed wholesale exemption of SMEs from the labour law could lead to a discriminatory outcome for women, ethnic or religious minorities, internal rural migrants working in cities or persons in certain age categories. These groups tend to predominate in SMEs and in self-employment in micro and small enterprises, as they often face difficulties in finding other jobs. Thus, exempting SMEs from protective labour regulations would disproportionately affect these groups of workers, and would, thus, result in indirect discrimination on the grounds of sex, ethnicity, religion, social origin or other grounds.
In Iran, the labour law does not require SMEs employing less than 20 persons to abide by the regulatory protection for employees in larger enterprises. This means that the employees in these enterprises are not covered by legal entitlements and facilities, including maternity protection. Referring to the fact that many of the employees in Iranian SMEs are women, the Committee of Experts on the Application of Conventions and Recommendations (CEARC) concluded that, in practice, women face serious discrimination in the labour market. The CEACR urged the Government to ensure that all entitlements and facilities are made available to women working in temporary contract employment in SMEs.
Labour market regulation requires balancing different kinds of interests in the society. While the employers’ argument may be valid in some respects, the employees and workers in these enterprises, the trade unions and other rights groups may likely argue for extension of certain minimum standards of labour protection to all workers (for example, on minimum wages or safety equipment or other precautions in case of hazardous work) irrespective of the economic sector or size of enterprise they work for. Finding a solution that takes the needs and interests of both employers and workers into account requires dialogue between the two sides. In the end, it is the legislators’ responsibility to ensure that the solution adopted in the law maintains a fine balance between the legitimate interests of the two sides.
151 ILO: “Individual observation on the application of Convention No. 111 with respect to the Islamic Republic of Iran” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, International Labour Conference, 97th Session, Geneva, 2008.
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From the viewpoint of public interest, the need to protect fair employment standards for vulnerable groups outweigh the regulatory burden on SMEs. Burdens on SMEs should and can be alleviated by other effective means, such as: • An appropriate enforcement policy that at least initially favours promotion over enforcement, including grace periods. • Information campaigns and awareness raising by labour inspection services. • Support to employers’ organizations to strengthen their coverage and advisory outreach to SMEs. • Tax breaks for companies hiring a certain number of young persons, women, ethnic minorities, etc. • Subsidies encouraging SMEs to comply with essential minimum labour standards and invest in training of discriminated groups. • Subsidies to assist with specific accommodations required to employ, for example, workers with disabilities or from minority groups. • Promotion of community-based networking that helps SMEs to tap into local expertise for developing low-cost solutions to compliance issues.
To support SMEs in complying with their legal obligations, effective SME service infrastructures should be developed. The ILO Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), recommends that the SME service infrastructure covers, among others,“ […] assistance in understanding and applying labour legislation, including provisions on workers' rights, as well as in human resources development and the promotion of gender equality […]”.152
Case B. Domestic workers and employment conditions
Since the overall majority of domestic workers are women, excluding this sector from labour law protection disproportionately disadvantages women, and thus constitutes indirect discrimination in law on the grounds of sex. As most domestic workers have a migrant background (domestic or international), discrimination against domestic workers can also amount to indirect discrimination on the grounds of race, ethnic origin, colour or nationality.
In 2011, the International Labour Conference adopted Convention No. 189 and Recommendation No. 201 to promote decent work for domestic workers. The Convention notes that domestic work is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and work. The Convention requires ratifying member States to take measures to respect, promote and realize domestic workers’ fundamental principles and rights at work, including eliminating discrimination, child labour and forced labour, and guaranteeing freedom of association and the right to collective bargaining. Each member State shall also ensure that domestic workers enjoy fair terms of employment and decent working conditions, and are protected against abuse, harassment and violence. Furthermore, the remuneration of domestic workers shall be established without any discrimination based on sex.
The new instruments specifically call for national standards that address some of the issues raised in the case, particularly: decent hours of work, including rest breaks and a recognition that, in principle, stand-by time counts as work (even if the extent of this recognition may vary from country to country); a weekly day-off; a minimum wage; a written employment contract; progressive realization of occupational health and safety and social security coverage no less favourable than for other workers.
152 For more information, see C. Fenwick et al.: Labour and labour-related laws in micro and small enterprises: Innovative regulatory approaches (Geneva, ILO-SEED, 2007).
188 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 3029
5.2 Advocacy and reaching out
Exercise 30. Making the case for equality
Instructions for trainers
Aim – To practice making a convincing presentation on the promotion of equality at work with well-founded arguments.
Time – 15 minutes on the first day for preparation (Step 1) and 90 minutes on the second day for the presentations and feedback discussion (Step 2).
Seating arrangements – Ensure all participants are positioned so that they can clearly see and hear the speakers making the presentations.
Training materials – Copy the Handouts, one each for all participants.
Steps
Step 1. Preparation – 15 minutes
Ø Explain the aims of the exercise to the participants and distribute Handout 1 with the presentation topics and audiences. Ask each participant to choose one topic and prepare a short speech of three minutes maximum to make the case for promoting the selected topic (for delivery on the following day).
Ø Instruct participants to develop three to five strong arguments in favour of the case they have chosen to present. They should think about their audience and emphasize arguments that are likely to convince them. The case for equality needs to be made in a brief and to-the-point manner. The presentations will be timed, and speakers will not be allowed to speak more than three minutes.
Ø Encourage participants to give a lively speech and use body language and other means to ensure effective communication of the message. Participants can use any materials, media, methods or equipment to present their case. Participants can prepare with other participants, and may ask another person to join them during the presentation. However, the presentations need to be given individually.
Step 2. Speaking practicum and feedback discussion – 90 minutes (on the following day)
Ø Ask each of participants to present their case one after another. Time the presentations and make sure nobody exceeds the three-minute time period. Give each participant a few words of encouragement and support after their presentations, but keep these comments brief.
Ø After all participants have presented their arguments, provide the trainer’s feedback on
189 Equality and non-discrimination at work in Cambodia: Manual Exercise 29
the presentations as a whole by pointing out strengths and weaknesses in the substantive argumentation and the presentation skills. Make a list of the identified strong and weak points, and ask participants to add. The trainer can give specific examples from the presentations but should not single out individual presentations in great detail.
Ø After the discussion, distribute Handout 2 to participants. Go through the four questions and answers in the Handout, and ask if participants have ever had similar discussions when advocating gender equality and the advancement of women. Facilitate a plenary discussion around the questions and answers. Ask participants to also share common questions and arguments when advocating equality for other discriminated groups, for example, persons with disabilities or ethnic minority workers. Explain that many listeners may have strong opinions about the roles of women and men in the society, or biased assumptions about the abilities of persons with disabilities, or some may altogether oppose the idea of equality promotion. It is therefore important for equality advocates to present their case as convincingly as possible, for example by anticipating on possible concerns of the audience and addressing these in the presentation.
Ø Distribute Handout 3 to participants. Review the tips for public speaking given in the Handout, and facilitate general discussion on successful presentation skills. Ask participants to also reflect on what they feel went well in their presentation, and what they want to improve in the future.
Step 3. Roundup – 5 minutes
Ø Roundup the discussion as follows: Speaking with confidence and making a strong case for equality is an important ability for equality and advocates. To be effective arguments should be well- founded and based on convincing facts (not just “my workers want this”). Not all audiences are in favour of equality promotion, and some listeners may have strong ideas or biased assumptions about roles and abilities of women, men, persons with disabilities or living with HIV, ethnic minority workers, or trade union members. To convince skeptical listeners, it is important for speakers to make their argumentation in favour of the case at hand as strong as possible. Good ways to strengthen arguments: o Use concrete examples. o Refer to legislation and international standards that support your argument. o Prepare data and statistics on the different groups of workers (women, men, persons with disabilities etc.) that demonstrate discrimination and equality at different levels in the company, the workforce or the labour market. o Explain the benefits of equality measures for workers’ well-being and company productivity and public image. o Educate your audience: Explain and define concepts, repeal stereotyped ideas. o Ask questions to make your audience think. Make a presentation or speech as engaging as possible. To do this the speaker should maintain eye contact with the audience, use body language to emphasize the messages and walk around to engage listeners in different parts of the room.
190 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 3029
Exercise 30. Making the case for equality
Handout 1. Speaking assignment
Choose one of the below topics and prepare a three minute speech to argue your case. Develop three to five well-founded arguments in favour of your case to convince your audience.
1. Convince the leadership of your organization about the benefits of promoting women’s advancement to higher level positions in your organization.
2. Convince the relevant government authorities about the importance of promoting equal pay for women and men for work of equal value (instead of equal pay for same work) and the need to amend the related legal provisions.
3. Convince representatives of your employer about the benefits of preventing and addressing sexual harassment at work and the need to adopt measures against sexual harassment.
4. Convince representatives of your employer about the benefits of paying maternity benefits as a lump sum before the start of maternity leave for all pregnant workers.
5. Convince the leadership of your organization to adopt affirmative action measures to promote career development of women and persons with disabilities in your organization.
6. Convince the representatives of your employer to provide reasonable accommodation to workers with disabilities.
7. Convince representatives of your employer about the benefits of good work-family balance for both women and men workers and the need to upgrade the company crèche.
8. Convince the leadership of your company about the need to have more women in the company board.
Additional questions for trade unions:
9. Convince women workers about the benefits of becoming members of the trade union.
10. Convince a woman trade union member to stand for elections.
11. Convince the members of your union to vote for you (a women trade union leader) in the trade union elections.
191 Equality and non-discrimination at work in Cambodia: Manual Exercise 3029
Exercise 30. Making the case for equality
Handout 2. Tips for speakers
Gender advocacy messages: How to deal with tricky questions?
Question 1. Our women are happy with the way life and work is organized in our society. We see no need to change, why should we?
Answer 1. Have you asked the women who are disadvantaged? Richer women and men who belong to the well-off parts of society have often not faced discrimination themselves and may not see the need for change. The picture changes if you ask those who suffer from discrimination.
Question 2. In Asian society we highly value our women as mothers and caretakers of the family so there is no gender inequality in our society. What is the problem?
Answer 2. If all women and men are happy in a society with the way the relations between men and women are organized, there is indeed no problem. However, when there are unequal power relations between men and women in a society, those who suffer from these inequalities are usually keen to change. Giving high esteem to women and mothers in general does not mean that there is equal sharing of workload and decision-making. Nor does it mean that girls and boys have equal chances in life. Giving value to women only in their roles of mothers and caretakers may also mean a disregard for the value of their other roles and responsibilities. You need to look for the facts, do a sound gender analysis, ask women and men from all spheres of life what is the situation and then base your action on facts not only on values and beliefs which may not be grounded in reality.
Question 3. Are we not imposing western feminism on other societies?
Answer 3. The demand for gender equality evolved both from developed and developing countries and has strong roots in all civil societies. Not only Western women, but women worldwide have struggled against women’s oppression and inequality in society for decades, and the women’s movement is active in all parts of the world.
Question 4. Isn’t it culturally inappropriate to try to change gender relations through development activities?
Answer 4. • All societies in the world change constantly and are neither static, nor harmonious. People all over the world struggle for justice and equality of opportunity and treatment. The concept of the ‘traditional culture’ which should not be changed is too easily used as a way of keeping power in the hands of a few. One should consult especially with women and their organizations to find out their views and interests. • All development activities, whether they are about legal reform, education or employment promotion promote changes in attitudes and behaviour. • Both women and men in societies need to decide what changes are are needed to improve gender equality in the family, the workplace and society.
Source: ILO: Gender equality mainstreaming strategies in decent work promotion: Programming tools – GEMS Toolkit (Bangkok, 2010).
192 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 3029
Exercise 30. Making the case for equality
Handout 3. Tips for speakers
Tips for public speaking
How to prepare?
1) Practice, practice, practice: Practice speaking by yourself or in front of others any time you can.
2) Be prepared: Do not write your speech out word for word. Instead, make an outline with key points and phrases.
3) Start low-risk: Practice in your “comfort zone” – with friends, coworkers, housemates – then in smaller groups to ease your way into larger engagements.
4) Chill out: Learn different relaxation methods to use before and during your presentation. Remember that most audiences are kind to a speaker who is well-prepared.
5) No one can tell: Though you may feel like an absolute mess, your cold hands, dry mouth and racing heart are invisible to your audience. Chances are you look cool and confident to them!
6) Check the room and the equipment: Visit the place where you will be speaking prior to your presentation to become familiar with the seating, lighting, position of the microphone and so forth Ensure that the equipment works properly prior to starting your talk.
How to speak?
1) Wear your audience’s shoes: Use your time effectively. Be as interesting as you can: Use clear, understandable statements. Be brief!
2) Skip the ums, ers, and ahs: It’s natural to want to fill silent spaces with some type of utterance. Make a conscious effort to avoid this (being well-prepared helps).
3) Be yourself: You will be most believable and comfortable if you act naturally.
4) Enthusiasm!!! Speak with as much enthusiasm as you can muster. If you appear bored, there is virtually no way your audience will be excited.
5) Narrow your focus: It is difficult to cover a big topic like “successful speaking” when you are allotted only 10 minutes. Speaking about “seven tips for running a successful meeting” would be more manageable.
6) Maintain eye contact: Let those listening to you know that you are talking to them and not the floor.
193 Equality and non-discrimination at work in Cambodia: Manual Exercise 3129
Exercise 31. New union strategies to protect the equal rights of workers at the bottom of global supply chains: Case study
Instructions for trainers
Aim – To discuss new trade union strategies to promote equality in employment for workers at the bottom of global supply chains.
Time – 40 minutes.
Seating arrangements – Small group seating around tables enabling participants to work in groups of three to six persons.
Training materials –One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise and distribute Handout 1. Divide participants into small groups and ask them to read and discuss the case. Tell each group to select a spokesperson who will present the case for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask a few volunteers to present the case. Ask other participants to ask questions or comment. Add points not mentioned by the groups or correct misunderstandings using Handout 2 as needed.
Ø Roundup the discussion as follows: • Workers at the bottom of global supply chains often work under poor working conditions and job security, and earn low wages. Especially emergence of new forms of atypical and informal employment – such as temporary work, agency work, part-time work and work as independent contractors or home-based subcontracted workers – makes it challenging for trade unions to organize and represent these workers at the bottom of global supply chains, who are often women, migrant workers or ethnic minority workers. • Due to the precariousness of their employment status, workers at the bottom of global supply chains are more vulnerable in the labour market than other workers, and they need strong representation to protect their right to equal treatment and decent employment and working conditions. • The trade unions in the sourcing countries and consuming countries are identifying new ways to reach out to these new members, and to formulate effective strategies to protect the rights and interests of their membership in the changing market situation and the globalizing labour market.
194 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 3129
Exercise 31. New trade union strategies to protect equal rights of workers at the bottom of global supply chains: Case study
Handout 1. Case
Trade unions and meat-processing companies – UK
TESCO is a major supermarket chain in England and has hundreds of outlets in Asian countries, such as China, Japan, Malaysia, the Republic of Korea and Thailand. It buys its meat supplies from a wide range of small, local meat-processing companies. In England, these small companies, in order to stay competitive in terms of price and delivery speed, are employing more and more workers through temporary work or staffing agencies – also known as private employment service agencies or outsourcing agencies. The majority of workers recruited by these agencies are temporary international migrant workers and ethnic minority workers. In recent years, the trade union has been reaching out to these workers, who earn significantly less than the permanent workers who are predominantly local, despite the demanding working conditions to which the migrant workers are exposed.
Questions for discussion: 1. Do you think the workers in the small meat-processing companies are discriminated? 2. Imagine that you are a trade union leader in England wanting to improve the salaries and working conditions of the agency workers in the meat industry. What issues would you raise and with which parties would you raise them? 3. Then imagine that you are the owner of one of the small meat-processing companies. How would you react to the arguments presented by the trade union? 4. Picture the whole meat supply chain from the local meat-processing companies up to the TESCO supermarkets. Brainstorm to come up with new and innovative approaches that trade unions and other stakeholders can take to improve wages and labour conditions in the whole supply chain. Make a list of these measures. 5. Many of the products sold in TESCO supermarkets are sourced in Asia. What kind of strategies could trade unions use to improve labour protection in the factories in sourcing countries?
195 Equality and non-discrimination at work in Cambodia: Manual Exercise 31
Exercise 31. New trade union strategies to protect equal rights of workers at the bottom of global supply chains: Case study
Handout 2. Case responses
Trade unions and meat-processing companies – UK
This case study is an adaptation of a real-life situation involving the British trade union UNITE and the British transnational supermarket chain TESCO-Lotus.153 UNITE is a trade union with two million members covering a wide range of industrial sectors, including “food, drink and tobacco”. In recent years UNITE has reached out to the unorganized, among them migrant workers working in meat factories.
The retail sector in the UK is dominated by large retailers such as TESCO that are able to control the market prices for meat and other products. Under pressure to keep prices down and delivery periods short the meat factories increasingly rely on the employment of workers who are recruited by private employment (service) agencies, also known as temporary work or staffing, or outsourcing agencies. The overwhelming majority of these temporary staffing agency workers belong to ethnic minorities or are international migrant workers, working at lower pay than the (mostly British) permanent workers. This has led to claims of racial discrimination.
When formulating a trade union strategy to raise wages of workers working in the meat industry it is important to pay attention to the characteristics of the supply chain in this industry. The legal employers of the migrant workers are the employment agencies at the bottom of the supply chain. The traditional trade union approach would be to organize the workers and bargain collectively at the workplace level factory by factory. Due to the pressure from retailers to keep prices low, this approach would most likely not be very efficient.
Concluding that the traditional bottom-up collective bargaining strategy might not be successful in the meat industry, UNITE decided to try a new top-down approach. It decided not to target the suppliers (the meat factories and the employment agencies), but the top of the supply chain, the transnational supermarket chains (TESCO and its competitors). It built its strategy on the assumption that large transnational companies such as TESCO would not wish to tarnish their brand images with allegations of racial discrimination in their supply chains.
In order to be able to exert influence on TESCO, UNITE bought a sufficient number of shares in the company to table a resolution at the shareholders’ meeting and to request board oversight of discriminatory practices in the supply chain. To ensure approval of its resolution in the shareholders’ meeting, UNITE contacted powerful shareholders such as the local pension funds in advance to secure their endorsement. In addition, it successfully lobbied with the Equality and Human Rights Commission to launch a formal inquiry into discrimination in the TESCO supply chain. Furthermore, UNITE contacted other more agreeable retailers such as Marks & Spencer (one of TESCO’s main competitors) to conclude “supply-chain-wide” agreements on improving labour conditions. Having TESCO’s competitors on its side and backed by the powerful shareholders and the Equality and Human Rights Commission, UNITE “forced” TESCO to undertake an internal review of labour conditions in its supply chain and to help the labour suppliers to raise wages for the migrant workers.
153 “Union takes migrant worker fight to Tesco AGM” in The Guardian (30 June 2009).
196 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 31
The case illustrates that a company may become involved with allegations of discriminatory practices in a variety of ways, for example: • As a defendant in an individual lawsuit alleging discriminatory employment practices. • As a negotiating partner in a collective bargaining process in which the trade union aims to address certain discriminatory practices. • As responsible for actions further down the supply chain ensuring that employment agencies eliminate discriminatory practices. • As an executive board member instructed by the shareholders” meeting to negotiate supply chain-wide agreements to eliminate discriminatory practices.
The case also illustrates that changes in the market situation and business patterns require trade unions to find new, innovative ways to combat discrimination and secure decent labour conditions for current or prospective members. Emergence of different types of atypical employment relations such as the employment agency or outsourcing system makes this especially challenging. Pressure exerted on major international brand companies can similarly be used to promote better labour protection at the bottom of international supply chains in factories, for example in Cambodia and other Asian countries.
197 Equality and non-discrimination at work in Cambodia: Manual Exercise 32
5.3 Company policies and collective bargaining
Exercise 32. Review of company equal opportunity policies
Instructions for trainers
Aim – To review company equality policies and to analyze different management approaches to equality management in company human resource practices.
Target group – Employers’ and workers’ representatives, and other audiences interested in equality management at company level.
Time – 60–90 minutes.
Seating arrangements – Small group seating in round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – Photocopy the handout with the questions and the policies. Provide for one sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share aims of the exercise with the participants and divide participants into small groups. Distribute the Handout with the questions and the company policies to the groups and assign each of the groups one policy to read and discuss. Ask the groups to discuss the policies, prepare a presentation, and select a spokesperson to present it for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a brief presentation.
Ø After the presentations, involve participants in a general discussion on what are the key elements of a company equality policy. Ask participants to highlight key points mentioned in the presentations by the different groups. Make a list of the key elements raised by participants on a flipchart, and add additional points as needed.
Key elements of a company equality policy:
• State the company’s commitment to equality and explicit prohibition of discrimination and harassment in the company. • Define the grounds of discrimination covered and the main issues to address. • Define the scope of application of the policy (recruitment, career development, wages, etc.). • Explicitly state the commitment of the company board and senior management.
198 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 32
• State which department or person is responsible for implementation. • Provide for the development of an action plan to promote the policy. • Establish a mechanism for handling discrimination related complaints. • Define how the implementation of the policy will be monitored.
Ø Encourage participants to comment on the list. Ask them to reflect on whether their company should adopt an equality policy and what issues the policy should cover.
Ø Roundup the discussion as follows: • Promoting equality in company practices means ensuring that all company decisions related to human resource management are made in a transparent way, and are based on fair and objective criteria. Ensuring that all company human resource policies and practices are free from discrimination requires a systematic approach to managing equality in the workplace. For this purpose employers who take equality seriously usually adopt special management tools such as an equality policy and an equality action plan, and monitor implementation, for example, through an equality audit. • The equality policy should state the company’s commitment to equality of opportunity and treatment in all company human resource practices and in fostering a workplace culture free from discrimination and harassment. The equality action plan outlines the practical steps to be taken to realize the objectives set in the policy, including adoption of special affirmative action measures. • The equality policy should be prepared carefully and approved by the company board. To ensure that the policy responds to the needs of different groups of company employees, workers’ organizations and representatives of the directly concerned groups of workers (women, persons with disabilities etc.) should always be involved in development of the policy and the action plan.
199 Equality and non-discrimination at work in Cambodia: Manual Exercise 32
Exercise 32. Review of company equal opportunity policies
Handout 1. Company policies154
Review the company policy assigned to your group and discuss the following questions: 1. What are the main aims of the policy? 2. What types and grounds of discrimination does it cover? 3. What practical measures or mechanisms does the policy put in place? 4. Who is covered by the policy? 5. Who has the responsibility to take action?
Company policy 1. Merck - United States
1. Equal employment opportunity and affirmative action
Policy Date: 1 January 1996 Supersedes: 1 July 1992 Policy Responsibility: Human resources
Policy It is the policy of Merck & Co. Inc. to provide equal opportunity for all people without regard to race, color, national origin, sex, sexual orientation, age, marital status, religion, disability, or veteran status with respect to employment, or in any of the Company's terms or conditions of employment, including policies or practices affecting: 1. Recruitment and placement. 2. Promotions, demotions, or transfers. 3. Layoff, recall, or termination. 4. Training, educational, social, and recreational programs. 5. Compensation or benefits.
The Company is committed to actively promoting equal opportunity and pledges itself to a continuing program of Affirmative Action. Management is to make thoughtful and equitable efforts to correct imbalances in any areas of the workforce where particular groups of employees are not adequately represented.
The Company's employment practices will conform with the letter and spirit of all laws and regulations. The Company will continue to work cooperatively with and seek the assistance of appropriate government agencies, educational institutions, civic organizations, and other groups to carry out our Affirmative Action Programs.
Objectives The objectives of this policy are: 1. To provide a work environment which will attract the best available people into our organization and provide our employees with an atmosphere conducive to development and advancement. 2. To utilize effectively all human resources available to the Company to better meet the Company's need for long term growth and operating efficiency. 3. To meet the Company's social responsibility to provide equal opportunity for employment to all qualified applicants from all segments of the population. 4. To ensure Company compliance with federal, state and local laws.
154 ILO: E.quality@work: An information base on equal employment opportunities for women and men, CD-ROM, Gender Promotion Programme (Geneva, ILO, 2001); Beijing Zhongze Women's Legal Consultation and Service Center, Women Watch China, Unpublished materials (Beijing, 2009).
200 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 32
Responsibility The responsibility for carrying out this policy rests with every member of the Company's management. Each executive has the responsibility for ensuring that his/her managers and supervisors understand this policy and its objectives, and that each manager and supervisor implements them fully. Division/Area management is responsible for preparing an annual affirmative action plan and implementing the plan. […] The Corporate Equal Employment Affairs Department has the responsibility for coordinating equal employment opportunity (EEO) programs, auditing EEO practices and affirmative action implementation, and providing guidance in this area throughout the Company.
Practices and programs All recruiting, training, and human resource planning programs shall include objectives consistent with this policy.
Each year every domestic site and division shall develop and implement a written affirmative action plan which includes goals and timetables aimed at achievement of full utilization of minorities, females, veterans, disabled persons and other protected groups. Site and divisional management shall review their progress in achieving their annual goals on a regular basis and take corrective action where necessary.
Managers responsible for employment and placement shall actively seek applicants for employment and candidates for promotion from minority groups and females so as to ensure full implementation of this policy.
Communication of policy Distribution of this policy should be made to all managers and supervisors and to all other employees engaged in employment, placement, and training. Suitable material should also be included in Company publications. Periodic restatements pertaining to our Equal Employment Opportunity posture should be made to all organizations and agencies used for personnel recruitment. Also, all recruitment literature and employment advertising will indicate that the Company is an Equal Opportunity Employer. Restatement of the policy on a continuing basis should be conducted at appropriate management conferences and in supervisory training courses.
2. Discrimination Complaints
Policy Date 1 July 1992
Scope Applies to all employees of Merck & Co., Inc.
Policy It is the policy of Merck & Co., Inc. to ensure that any employee who feels that he or she has been discriminated against because of race, color, national origin, sex, sexual orientation, age, marital status, religion, veteran status or disability, shall be given a fair and equitable review.
Procedure All employees are encouraged to first use the normal channels available for the resolution of problems, complaints or grievances - the grievance procedure for organized employees and the problem resolution policy for unorganized employees. If the employee is still not satisfied, he or she may refer the situation to the Site Equal Employment Affairs representative, or, if he/she prefers, to the Corporate Director of Equal Employment Affairs, who will review the situation and make recommendations to the appropriate division/area head.
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Company policy 2. Beijing Cuiwei Plaza Co. Ltd. – China
Code of conduct to prevent workplace sexual harassment, Beijing
In order to uphold a good corporate image by creating an equal, healthy and safe working environment to protect employees’ individual dignity, rights to equal employment, privacy, and workplace health and safety, a Code of conduct to prevent workplace sexual harassment has been established within Beijing Cuiwei Plaza Co. Ltd.
A. Definition of workplace sexual harassment Any unwanted words (including electronic messages) or physical behaviour that have sexual implications in the workplace, putting an employee into a disadvantaged position or harming the working environment. Whether sexual harassment is constituted depends on the reaction of the offended employee (see notes).
B. Obligations of employees and the Group in prevention of sexual harassment a. No one should conduct sexual harassment. b. All employees are obliged to report sexual harassment behaviours, and have the right to request the related department of the company to timely deal with harassment based on company policies. c. The harasser should not take reprisals against complainants or witnesses, otherwise the harasser will be subject to disciplinary action. d. The company is obliged to provide employees with a safe and pleasant working environment. e. Improper handling or breach of confidentiality of harassment cases will be subject to sanctions. f. The company will take disciplinary actions against harassers based on the degree of the offense, and a serious offense could lead to dismissal.
C. Institutions dealing with complaints The harassment complaints centre is established under the Women Workers’ Committee of the Trade Union of the company. It is comprised of five members, and the head of the center will be the director of the Women Workers’ Committee. The complaints hotline: 68167748.
D. Responsibilities of the harassment complaints centre a. Carry out investigation after receiving complaints and keep records of the case. b. Make recommendations to the relevant department of the company to take appropriate actions to deal with harassment incidents in a timely fashion based on company policies, including warning, job suspension, or dismissal. c. Take measures to make sure no further harassment will be implemented towards the complainant by the same offender. d. Keep confidentiality as much as possible. e. Make sure no reprisals will take place against the complainant and witness. f. Conduct advocacy and training on the prevention of sexual harassment.
E. Training, advocacy and education on prevention of sexual harassment The company will organize training on prevention of sexual harassment. Regular training on prevention of sexual harassment will be conducted for all employees, and training will be conducted in a timely manner for new recruits.
The company will regularly carry out advocacy on sexual harassment policies, the complaints handling department, and the roles and responsibilities of employees and the company in the prevention of sexual harassment.
202 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 32
Notes: a. Workplace covers: i. The general workplace. ii. Other places besides the general workplace–offices of clients, destinations of business travel, places for business lunch (dinner), operating sections, homes of clients. iii. Places of proper extension from the workplace–places which the Company organizes trips to, and places for social activities and gathering. iv. Changing rooms, bath rooms, dining rooms and workers’ apartments of the company. b. Unwanted: i. Language or behaviour that is unwanted or felt as uncomfortable by the recipient. ii. Language or behaviour that seems acceptable but is unwanted by the intended recipient. c. Definition of language or behaviour of sexual implications: i. Sex related joking or teasing. ii. Persistent invitations to dinners and outings. iii. Deliberately spreading sex related rumors. iv. Asking or telling about sexual experiences. v. Spreading or showing nude pictures or paintings with obvious sexual flavour. vi. Unnecessary body contact. vii. Asking for sexual relationship. viii. Sexual relationship by force.
203 Equality and non-discrimination at work in Cambodia: Manual Exercise 33
Exercise 33. Review of collective agreements on equality promotion
Instructions for trainers155
Aim – To review collective agreements on equality and discuss the role of collective bargaining in equality promotion.
Target group – Workers’ and employers’ representatives and any other audiences engaged in equality promotion through collective bargaining.
Time – 60-90 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – Photocopy the Handout with the questions and the agreements. Provide for one sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share aims of the exercise with participants and divide them into small groups. Distribute Handout 1 to the groups and assign each group one collective bargaining agreement. Ask the groups to discuss the questions and prepare a presentation or a role-play.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a presentation or present their role-play highlighting the key findings of their group.
Ø Roundup the discussion as follows: • Collecting bargaining refers to the process by which employers’ and workers’ organizations voluntarily (meaning without outside pressure such as from government) discuss and negotiate mutually acceptable terms and conditions of employment. • Collective bargaining can be a key strategy to promote equality at work. Equality bargaining can be done at the enterprise, industry, sectoral, regional or national level. The agreement can cover either one or more industries or sectors of public administration. Both private and public sector workers can be covered by bargained collective agreements. • Equality issues can be covered in a separate equality agreement or in specific provisions included in a general collective agreement with a broader scope. As demonstrated by the collective agreements discussed in this exercise, equality agreements can cover a wide range of issues, depending on the needs and interests of the workforce in the company, industry or sector.
155 For further guidance see ILO: Promoting gender equality: A resource kit for trade unions, Booklet 3: The issues and guidelines for gender equality bargaining (Geneva, 2002); ILO: Gender equality: A guide to collective bargaining. Booklet 1: Gender equality bargaining: An overview (Geneva, 1998).
204 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 33
• In equality bargaining – as in any collective bargaining – it is important to ensure that all groups of workers can voice their concerns and participate in negotiations and decision-making. For this reason it is important to ensure that each of the directly concerned groups of workers (e.g. women, persons with disabilities, ethnic minorities) are represented by their own spokespersons in the negotiations.
205 Equality and non-discrimination at work in Cambodia: Manual Exercise 33
Exercise 33. Review of collective agreements on equality promotion156
Handout 1. Collective agreements
Review the collective agreement assigned to your group and discuss the following questions: 1. Which two parties concluded the collective agreement? 2. Who is covered by the collective agreement? 3. What are the main aims of the agreement? 4. What types and grounds of discrimination are addressed? 5. What kinds of practical measures and/or mechanisms does the collective agreement put in place?
Prepare a brief presentation or role-play highlighting the key findings of your group.
Collective agreement 1. Wilhelm Weber Company – Company level agreement
Wilhelm Weber Gmbh – Plant agreement
Schedule of women's promotion Catalogue of measures
Preamble The aim of the agreement is – based on the agreed provisions in the following catalogue of measures – to achieve: • Equal opportunities in access to chances at the beginning and development. • To dismantle the underrepresentation of women in all fields. • To enable all female and male employees to coordinate family and work.
Measures I. Advertisements of vacancies 1. In all advertisements of vacancies, internal and external the female and male (grammatical) form must be used. 2. In advertisements of vacancies for departments in which women are under-represented, they will be addressed specifically by pointing out the aim of increasing the proportion of women. (For example: "The Wilhelm Weber Ltd. aims to increase the proportion of women in their departments. For that reason applications of women are specifically wanted.")
II. Filling of vacancies and staffing 1. Female applicants will be invited to an interview corresponding to their proportion of the total number of applications (according to the multi-stage plan). 2. In the process of assessment the marital status and the income of the partner may not be considered.
III. Training All trades requiring an apprenticeship are open to women and men equally. 1. In the case of an insufficient number of applications of women, the advertisement of a
156 European Foundation for the Improvement of Living and Working Conditions: Equal opportunities and collective bargaining in the European Union: Selected agreements from Germany, phase II (AnniWeiler), WP/97/16/EN (Dublin, 1997); ILO: Promoting gender equality: A resource kit for trade unions, Booklet 3: The issues and guidelines for gender equality bargaining (Geneva, 2002), pp.50-51; L. N’Daba; J. Hodges- Aeberhard: HIV/AIDS and employment (Geneva, ILO, 1998), pp. 69-71.
206 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 33
vacancy has to be repeated. A ratio of 50 per cent of female and male applicants should be targeted. […] 3. Recruiting trainees for the industrial-technical sector (especially specialist staff for food techniques) special incentives (admission of additional trainees, school talks on the outline of the profession, video presentations etc.) should be created - in cooperation with schools and the women representative of the district. 4. The test and selection procedure for apprentices must do justice to the different socialisation respectively to the interests of life of young women and men and may not cause discrimination of women.
IV. Further training Offers of further and vocational training are open to men and women equally: 1. The budget for further and vocational training will be shared among the departments corresponding to the percentage of the proportion of women. 2. Women should be specifically attracted, motivated and promoted in the sense of a phased qualification by their particular supervisor to take part in measures of further and vocational training. 3. The departments have to work out measures, respectively module systems for higher qualification of their female employees and present it to the "working group women's promotion." 4. The participation of part-time and full-time employees in further and vocational training is considered as working time. If the measure of qualification goes beyond the contractual working time it will be settled by spare time. 5. For part-time employees with reduced working time owing to childcare or relatives needing care, offers of further and vocational training will be arranged favourably with regard to time and organization. 6. Offers of further and vocational training should be examined with regard to offers of childcare as far as this is necessary for the female and male participants. 5. In courses for supervisors and female respectively male master craftsmen the special topic "Women in industrial-technical sector" must be implemented. […]
XI. Promotion of managers In order to increase the proportion of women in leading and responsible positions of the enterprise the following measures are implemented: 1. Vacant management positions will be advertised openly and in gender-neutral terms. 2. Internal applications of qualified women will be treated preferentially. 3. In terms of planning an occupation and career the enterprise initiates a conversation on the perspectives within the enterprise. 4. Vacant management positions will be examined with regard to the possibility of an alteration into two part-time jobs and an appointment of two employees in accordance with job content and organization. 5. In order to develop managers in the enterprise, deputy positions will be appointed in a way that qualified women and men will be promoted by "training on the job." 6. A programme of further education in the sense of planning a career corresponding to the specific demands of the enterprise will be developed for future female managers. 7. Regularly courses on management will be offered to female managers and deputies in which they should participate twice a year. 8. An application of a female deputy for a corresponding vacant management position should be considered preferentially. […]
XIV. Scope of the plant agreement The plant agreement applies to all subsidiary plants of the Wilhelm Weber Ltd. within the Federal Republic of Germany.
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XV. Period during which the agreement is in force The plant agreement enters into force on 1 January 1994 and is terminated by 1 July 2001. A prolongation is possible conjointly between the management and the works council.
Wilhelm Weber Gmbh General Works Council of Wilhelm Weber Gmbh
Collective agreement 2. Mining industry – National industry level agreement
Agreement between the National Union of Mineworkers and the Chamber of Mines of South Africa
Objective The objective of this agreement is to provide industry-level guidelines: 1. To minimize the effect of HIV in the mining industry. 2. To prevent the spread of HIV infection. 3. For the management of HIV infection in the employer/employee relationship.
Policy
1. General principle Whilst recognizing that there are circumstances unique to HIV infection, the fundamental principle to be applied is that HIV infection and AIDS should be approached on the same basis as any other serious condition.
2. Rights of the individual employee 2.1. Rights of employees who are HIV-positive: HIV-positive employees will be protected against discrimination, victimization or harassment. 2.2. Testing: No employee should be required to undergo an HIV test at the request, or upon the initiative of management or an employee organization, provided there where HIV testing is intended in specified occupations on medical grounds. 2.3. Employment opportunities and termination: No employee should suffer adverse consequences, whether dismissal or denial or appropriate alternative employment opportunities which exist, merely on the basis of HIV infection. 2.4. Counselling: Appropriate support and counselling services will be made available to employees. 2.5. Benefits: Employees who are clinically ill or medically unfit for work will enjoy benefits in terms of the relevant conditions of employment as negotiated from time to time between the parties. […]
5. Awareness and education programmes 5.1. In the absence of vaccine or cure, information and education are vital components of an AIDS prevention programme because the spread of the disease can be limited by informed and responsible behaviour. 5.2. Appropriate awareness and education programmes will be conducted to inform employees about AIDS and HIV which will enable them to protect themselves and others against infection by HIV. 5.3. The involvement of employees and their recognized representatives is of key importance in awareness, education and counseling programmes to prevent the spread of AIDS as well as in the support for HIV-positive employees.
208 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 33
5.4. The employer will consult with employees and their recognized representatives on current and future programmes and their implementation, at mine level.
6. Lifestyle changes 6.1. It is acknowledged that it is the role of each individual to prevent the transmission of HIV through informed and responsible behaviour and the parties also recognize that socio-economic circumstances can influence disease patterns in communities. 6.2. The parties agree to consider at mine level the socio-economic environment and lifestyles in relation to the effective prevention of HIV infection.
7. Health care workers 7.1. The policy recognizes the professional and ethical guidelines for health care workers as stipulated by the relevant statutory bodies.
209 Equality and non-discrimination at work in Cambodia: Manual Exercise 34
Exercise 34. Identifying priorities for equality bargaining
Instructions for trainers
Aim – To discuss the role of collective bargaining in equality promotion.
Target group – Workers’ and employers’ representatives and any other audiences engaged in equality promotion through collective bargaining.
Time – 60-90 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – Photocopy the Handout with the questions and the agreements. Provide for one sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share aims of the exercise with participants and divide them into small groups. Ask each of the groups to discuss and make a list of gender equality and women workers’ issues that can be addressed or promoted through collective bargaining. Ask participants to share their experience on bargaining on equality and to identify priority issues for equality bargaining in their own organizations.
Ø Reconvene in plenary when the groups are ready. Ask each group to give a presentation on the key findings of their group.
Ø Distribute Handout with a list of equality and non-discrimination issues in collective bargaining. Refer to a few key issues mentioned in the group presentations and highlight any important issues not mentioned by the groups. Facilitate further discussion and answer questions.
Ø Roundup the discussion as follows: • Collecting bargaining refers to the process by which employers’ and workers’ organizations voluntarily (meaning without outside pressure such as from government) discuss and negotiate mutually acceptable terms and conditions of employment. • Collective bargaining can be a key strategy to promote equality at work. Collective bargaining agreements usually regulate terms and conditions of work such as wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Therefore key equality issues such as equal pay, maternity leave and benefits, work-family balance or reasonable accommodation should be included on the bargaining agenda. Equality issues can be covered in a separate equality agreement or in specific provisions included in a general collective agreement with a broader scope. • In equality bargaining – as in any collective bargaining – it is important to ensure that all groups of workers can voice their concerns and participate in negotiations and decision-making. For this reason it is important to ensure that each of the directly concerned groups of workers (e.g. women, persons with disabilities, ethnic minorities) are represented by their own spokespersons in the negotiations.
210 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 34
Exercise 34. Identifying priorities for equality bargaining
Handout. Case responses157
Possible issues for equality bargaining
Non-discrimination and dignity at the Hours of work workplace • Basic hours and overtime. • Trade union activities. • Night work. • Discrimination. • Part-time work and job sharing. • (Sexual) harassment. • Flexible working time. • Violence at the workplace. • Needs of pregnant and nursing • Equal opportunities in hiring and mothers. promotion. • Time off for family responsibilities. • Equal access to education and training programmes. Leaves of absence • Affirmative action to give all groups • Paid annual leave. of workers a voice at all levels of the • Compassionate or bereavement leave. establishment. • Maternity/paternity/parental leave. • Medical or sick leave. Wages and benefits • Paid education or training leave. • Equal pay. • Other personal leave (for marriage, etc.). • Job classification. • Pensions. Health, safety and the work environment • Transport and housing benefits. • Health and environmental hazards. • Medical benefits. • Ergonomics. • Overtime entitlements. • Health and safety committees and • Bonus systems. safety representatives. • Dependent allowances. • Personal protective equipment. • Welfare facilities and services. Maternity protection • Needs of disabled workers. • Non-discrimination against pregnant • Reasonable accommodation. and nursing women. • Reproductive health. • Maternity leave and cash benefits. • HIV and AIDS information. • Job security. • Impact of new technologies. • Reproductive health care and leave for prenatal checkups. Defending rights of non-permanent and • Adoption. vulnerable workers • Categories – casual, temporary, Family responsibilities piece-rate workers, seasonal, • Paternity/parental/family leave. contract, part-time, rural, • Childcare facilities. homeworkers, domestic, migrant, • Care of the elderly or disabled. indigenous and tribal workers. • Protection against discrimination or • Avoid non-permanent status for victimization. permanent work. • Extend equal working conditions to non-permanent workers.
157 ILO: Promoting gender equality: A resource kit for trade unions, Booklet 3: The issues and guidelines for gender equality bargaining (Geneva, 2002); ILO: Gender equality: A guide to collective bargaining. Booklet 1: Gender equality bargaining: An overview (Geneva, 1998).
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• Eliminate child labour.
Representation and voice
Ensure that all groups of workers (e.g. women, workers with disabilities migrant workers) are adequately represented by their own representatives.
At the workplace: • Negotiating table. • Occupational health, safety and environment committees. • Grievance handling. • Shop stewards and works committees. • Company boards. • Training and retraining. • Representation at all levels of the establishment.
In the union: • Representatives in all sectors and occupations and at all levels. • Women's committees and departments. • Education and training committees. • Union organization. • Negotiation committees/tables. • Health, safety and environment committees. • Building solidarity.
Checklist: Equal opportunity guidelines for union negotiators
Questions to negotiate or review an equal opportunities agreement with employers • Do you have an equal opportunities agreement? • Do all members and prospective members know about it? • Is it published or advertised? • Is it monitored? • Is it reviewed by management and union representatives? If so, how and how often? • Does it deal with job segregation, or lack of promotion for women? • Does it commit management to take positive action where the policy is not working? If so, what positive action has been taken and is it showing results? • Are management and employees trained on the policy? Is the training regularly updated? • Is there a joint union/employer equal opportunities committee? Does it meet on a regular basis? • Is there an agreed procedure for investigating complaints about recruitment, appointments and promotions? • Can staff get paid time-off to attend union training on equal opportunities? • Does the agreement demand that all collective agreements are reviewed to eliminate any bias on the grounds of sex, race, colour or any other ground prohibited in Convention No. 111 or in national legislation?
212 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 35
Exercise 35. Collective bargaining for gender equality: Role-play
Instructions for trainers158
Aim – To practice preparing and carrying out collective bargaining negotiations to promote gender equality at work.
Time – 90 minutes on the first day for preparations (Step 1) and 90 minutes on the second day for the mock collective bargaining negotiations (Step 2).
Seating arrangements – Group seating for Step 1. Negotiation table for two negotiation teams of 3-5 persons and chairs for the observers for Step 2.
Training materials and preparation – Handouts 1-4 copied for all participants. Use the slide presentation provided for this exercise in Step 1. Prepare the equipment for showing the slides.
Steps
Step 1. Preparation – 90 minutes
Ø Explain the aims of the exercise to participants. Use the slide presentation provided for this exercise to introduce the collective bargaining process and give tips for carrying out the negotiations.
Ø Tell participants that they will practice equality bargaining in two role-plays. Divide them into four groups. Two of the groups play the workers in the collective bargaining role-play (A1 and A2), and the other two groups play the employers in the role-play (B1 and B2). Pair the workers’ and employers’ groups so that each team has an assigned counterpart for the mock negations (for example, A1 with B1, and A2 with B2).
Ø Distribute Handout 1 with the case study from the Sweet World Factory, and explain that the collective bargaining negotiations take place between the enterprise level trade union and the management of this company. Distribute Handout 2 to the workers’ teams and Handout 3 to the employers’ teams, and ask each team to prepare for the negotiations in line with the instructions.
Ø Inform both groups that the workers’ teams should give the list of their demands to their counterpart employers’ team before the end of the day, so that the employers’ teams can prepare their responses to the workers’ specific demands.
Ø Also distribute Handout 4 to all participants to help them prepare for the collective bargaining negotiations.
158 The trainer’s instructions and Handouts 2, 3 and 4 are based on unpublished training materials of John Ritchotte, ILO DWT-Bangkok.
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Step 2. Mock collective bargaining negotiations – 90 minutes (on the following day)
Ø Ask the first pair of workers’ and employers’ teams to carry out the mock collective bargaining negotiations in accordance with instructions given in Handout 4. The other participants shall act as observers and prepare comments for the peer review feedback discussion after the negotiations. Time the negotiations, and make sure the teams complete their negotiations within 20 minutes. After the first round of negotiations, ask the second pair of workers’ and employers’ teams to carry out their collective bargaining negotiations.
Ø After two rounds of negotiations, reconvene in plenary for a peer review and feedback discussion. Ask the participants to share their views and comment on the two sessions of mock collective bargaining negotiations. Invite comments on the strong and weak points in the argumentation and negotiation strategies of the two pairs of negotiation teams. Assess also whether the negotiations were carried out in a polite, non- confrontational and cooperative spirit, and whether all teams were making an effort to reach win-win outcomes for both workers and employers.
Step 3. Roundup – 5 minutes
Ø Roundup the discussion as follows: • Collective bargaining is a powerful mechanism to reinforce women workers’ legal rights and to extend protection to new areas. • Common issues for gender equality bargaining include non-discrimination and dignity at the workplace, wages and benefits, maternity protection and family responsibilities. When formulating the collective bargaining agenda, women trade union members should always be consulted and fully involved to ensure that their needs and concerns are properly identified and prioritized in the negotiations. • Careful preparation is key to successful gender equality collective bargaining. All demands should be well-argued and backed up with facts and statistics on the actual situation and problems in the workplace. It is also good to prepare data and evidence of the benefits of gender equality promotion for both the employees’ well-being and the employers’ business. • At the negotiation table, it is important to create and maintain a polite, cooperative and non-confrontational spirit, and to motivate the employer side to see the benefits of gender equality promotion for both the employers’ business and the company workforce. Both sides should listen, seek to understand the constraints of the other party and aim for win-win outcomes.
214 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 35
Exercise 35. Collective bargaining for gender equality: Role-play
Handout 1. Case study
Problems in the Sweet World Factory?159
The Company “The Sweet World” is a large enterprise, with 1,500 employees. It produces chocolates and sweets, exported all over the world. Its success is based on the quality of its products and its old tradition. It was founded in 1910, with 200 employees and it grew slowly, year after year until last year when, after a merger with another company, it reached its present size.
Women employees represent 40 per cent of the workforce. All secretaries are women. All technicians are men. All the top managers are men. Five per cent of middle managers are women. In general, managers are not recruited externally. They are selected among internal qualified staff already familiar with the company organization. Secretaries are recruited locally and selected by a senior secretary, who is also in charge of training them. Women represent 40 per cent of the workers on the production line. It is a unionized enterprise. Twenty-five per cent of the employees are members of the Trade Union. The Trade Union Committee is composed only of men.
Wages in the company are in general higher than the wages agreed for the sector. The enterprise also gives different bonuses, linked to availability of staff to work overtime and on weekends. In peak periods, the amount of overtime is high, but always negotiated and agreed with the staff union.
Different training courses are provided, inside and outside the company, in particular for managers and technicians, to update their competences in management, marketing, trade, new technology and new equipment, etc.
There are no specific provisions for family-related issues. However, the top managers have demonstrated in some cases a supportive and friendly attitude towards specific problems affecting the employees' families by adopting specific measures.
There is no record of official grievances on gender discrimination. However, three women were moved to another job after their maternity leave, for “organizational” reasons. When the company, three years ago, introduced a third shift (from 10 p.m. to 6 a.m.) several women – in particular those living far away from the company and/or with children – decided to quit.
In the last five years, another four women “decided to quit” when they became pregnant. Rumours circulated among the staff that they were asked to sign a dismissal letter when they were recruited, but this was never proved. Another couple of women workers quit recently, and some employees said the reason was sexual harassment. These cases were recently brought to the attention of a journalist who published an article in the local newspaper on “Why are women leaving the Sweet World”? The local television also broadcast the same news item and went to the company to interview managers, trade union representatives and some employees on this issue.
The management, as well as the trade union committee, wants to avoid bad publicity, which will negatively affect the company and ultimately employment. For this reason they have agreed to put gender equality on the agenda of the approaching negotiations and include gender equality clauses in the next collective bargaining agreement.
159 Case study adapted from ITC-ILO: “Labour inspection and gender equality”, in Building modern and effective labour inspection systems (Turin, 2011).
215 Equality and non-discrimination at work in Cambodia: Manual Exercise 35
Exercise 35. Collective bargaining for gender equality: Role-play
Handout 2. Group work instructions – Workers’ preparation (Groups A1 and A2)
Your group is the negotiation committee which the members of the Sweet World Factory trade union have selected to prepare for and carry out the gender equality bargaining. The negotiation committee consists of elected union leaders, activists and members. Your tasks are as follows:
1. Collect demands: Discuss the situation in your company, the Sweet World Factory, to identify gender equality issues and problems, which could be addressed in the upcoming collective bargaining negotiations. Try to identify all issues which seem to have caused frustration or distress among your members (manifested e.g. in decisions to quit the company).
2. Make up a list of demands: Compile key issues and problems identified into a single list of demands. It is best to limit the demands to two to three priority demands. Distinguish between rights demands (what is already in the law and regulations) and interest demands (claims above what law provides). Note! Share your list of demands with the employers’ side well before the collective bargaining negotiations start.
3. Prioritize and cost your demands: Organize your demands in first, second and third priority demands. Identify the costs of your demands to the employer’s business.
4. Assign the negotiation team: Assign a negotiation team of three to five persons to carry out the negotiations. The team should be gender balanced. Assign specific roles to the members of the negotiation team as follows: • Spokesperson: The spokesperson leads the team and is usually the only person who speaks during the negotiations. • Record keeper: Records arguments, commitments and agreements. Monitors and assesses strategies and observes progress. • Other team members: Observe and offer feedback during meetings and adjournments.
5. Prepare your proposal: Prepare the proposal, which you will present in the beginning of the collective bargaining negotiations. The proposal should be concise, clear and well- argued. It can include a set of options based on your demands. Presenting the proposal should not take more than three minutes.
216 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 35
Exercise 35. Collective bargaining for gender equality: Role-play
Handout 3. Group work instructions – Employers’ preparation (Groups B1 and B2)
Your group is the negotiation committee, which has been appointed by the management of the Sweet World factory to prepare for and carry out the gender equality bargaining negotiations on behalf of the company. Your tasks are as follows:
1. Assess the situation: Discuss the situation in your company, the Sweet World Factory, to identify gender equality issues and problems, which could be addressed in the upcoming collective bargaining negotiations. Try to identify all issues which seem to have caused frustration or distress among your workforce (manifested e.g. in decisions to quit the company).
2. Review and cost the workers’ demands, and prepare your counterarguments: Review the list of demands prepared by the workers’ side. Identify the costs of the demands to your business. Prepare counterarguments to challenge the workers’ demands, and identify areas where you can make concessions and counterproposals. Remembers that workers’ well-being and good workplace harmony is also in the interest of the employer.
3. Assign the negotiation team: Assign the negotiation team of three to five persons to carry out the negotiations. The team should be gender balanced. Assign specific roles to the members of the negotiation team as follows: • Spokesperson: Spokesperson leads the team and is usually the only person who speaks during negotiations. • Record keeper: Records arguments, commitments and agreement. Monitors and assesses strategies and observes progress. • Other team members: Observe and offer feedback during meetings and adjournments.
4. Prepare your counterproposal: Prepare the counterproposal, which you will present in the beginning of the collective bargaining negotiations in response to the workers’ proposal. The proposal should be concise, clear and well-argued. It can include a set of options based on workers’ demands. Presenting the proposal should not take more than three minutes.
217 Equality and non-discrimination at work in Cambodia: Manual Exercise 35
Exercise 35. Collective bargaining for gender equality: Role-play
Handout 4. Instructions for the mock collective bargaining negotiations (All groups)
The workers’ and employers’ side should carry out the gender equality collective bargaining negotiations for the Sweet World factory in line with the instructions given below. Note that the role-play ground rules for the negotiation have already been agreed between the employers and workers of the factory prior to these negotiations.
1. Introductions and proposals: The spokesperson of the workers’ side introduces his/her negotiation team and presents their proposal (maximum of three minutes). The spokesperson of the employers’ side introduces her/his team and presents their counterproposal (maximum of 3 minutes).
2. Negotiations: The two parties negotiate using facts, arguments and persuasion. The spokesperson leads the discussion and the record keeper documents the agreed points. Tips for negotiation: • Make specific proposal and counterproposals. • Ask for clarifications if you are not sure what the other party states or claims. Ask questions and listen carefully to identify the other party’s needs and concerns. • Bargaining is about giving and taking. Try to understand why the other party says no. Seek out issues where you can make and cannot make concessions. • Challenge the other party’s argument to justify your own. • Be prepared to make concessions, but only if you can get something in return. Don’t give anything away for free. • Package and re-package. Be creative.
3. Complete the negotiations: Complete the negotiations and document the final agreements and their timelines. Note areas of disagreement, and indicate how these might be resolved.
The time limit for completing the collective negotiations is 20 minutes.
218 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 36
Exercise 36. Grievance handling on harassment and discrimination
Instructions for trainers
Aim – To identify and discuss how trade union leaders can help prevent and redress sexual harassment at the workplace and handle related grievances.
Time – 25-60 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – Copy Handouts 1, 2 and 3 for all participants.
Steps
Step 1. Sharing experiences – 20 minutes
Ø Explain the aims of exercise to the participants and divide them into small groups. Distribute Handout 1 to participants and ask them to discuss the questions.
Ø Reconvene in plenary when the groups are ready. Ask each group to share the findings of their group. Encourage further discussion and experience sharing on types of harassment and the role of trade union leaders, managers, supervisors and co-workers in preventing and redressing harassment at work. Steer the discussion towards identifying important elements of internal workplace procedures and mechanisms to handle harassment and other grievances.
Step 2. Review of guidelines and procedures for grievance handling (Optional – 40 minutes)
Ø Distribute Handout 2 with the guidelines for developing a grievance procedure for handling equality related grievances. Go through the guidelines by referring to some of the key elements of grievance handling procedures that were mentioned in the group presentations. Highlight any important points not mentioned in the previous discussions.
Ø Distribute Handout 3 with the sample procedure for handling equality related grievances developed by the Hong Kong Equal Opportunities Commission. Go through steps 1-3 outlined in the procedure, and invite participants to comment on these steps. Ask them whether similar approaches are used in their workplace to handle grievances and whether their workplace could establish a grievance handling procedure like this. Invite participants to also compare the strengths and weaknesses of having an established procedure for grievance handling and taking ad hoc measures when problems occur.
219 Equality and non-discrimination at work in Cambodia: Manual Exercise 36
Step 3. Roundup – 5 minutes
Ø Roundup the discussion as follows: A well-functioning internal procedure for grievance handling allows for swift and flexible handling of complaints, and this forms an essential part of cultivating good worker-management relations. If there is a conflict or grievance between two parties, it is important to hear both sides, investigate and seek evidence on the claims, even if this may be difficult especially in cases of sexual or racial harassment. It is important to apply the fundamental “presumption of innocence” towards both parties, that is, the alleged perpetrator and the victim. Important elements of a grievance handling procedure include confidentiality, impartiality and swiftness of the procedure. Specific measures may be needed to deal with sexual or racial harassment related grievances.160 Matters should be dealth with at the lowest possible level of the organization, but it is also important to provide for an avenue to bring the grievance up to the next level of management if the employee is not satisfied with the settlement. Leaders from the trade unions, women’s and human rights organizations and legal aid agencies are often the first persons that workers contact for advice and support when they have become victims of harassment or discrimination, and they can play an important role in supporting their members in seeking redress. Trade unions can lobby for establishment of internal workplace procedures for handling grievances, and support workers in using them.
160 See for example: ILO: Action against sexual harassment at work in Asia and the Pacific (Bangkok and Geneva, 2001), http://www.ilo.org/public/english/region/asro/bangkok/download/sextech.pdf (accessed 18 Oct 2012).
220 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 36
Exercise 36. Grievance handling on harassment and discrimination
Handout 1. Questions for discussion
1. What types of discrimination and (sexual or racial) harassment problems have come up at your workplace? 2. What actions were undertaken to redress discrimination and harassment, by whom? What were the strong points and weak points of the actions taken? 3. Does you workplace have any procedures or mechanisms in place for grievance handling? Are these procedures or mechanisms suitable for handling discrimination- related grievances? What needs to be done to better handle and resolve discrimination and harassment-related problems?
221 Equality and non-discrimination at work in Cambodia: Manual Exercise 36
Exercise 36. Grievance handling on harassment and discrimination
Handout 2. Guidelines for developing a grievance procedure
A well-functioning procedure for grievance handling allows for swift and flexible handling of the complaints, and as such can play an essential part in cultivating good worker- management relations.
ü Prepare the grievance procedure in written form. It can be prepared separately or as part of the equality policy. ü The grievance procedure should state company’s commitment to resolving any discrimination or harassment related complaint and grievance in a fair, confidential, efficient and thorough manner. ü Commit to carrying proper investigations in each case and handling all grievances seriously. ü Define the steps for bringing a complaint on discrimination. The steps should be simple and accessible to all workers. ü Provide for resolving the matter at the lowest possible level of the workplace. ü Ensure confidentiality and impartiality of the procedure. Always apply the fundamental principle of “presumption of innocence” towards both parties. ü Guarantee that both the complainant and respondent will be treated fairly. Both sides should be allowed to clarify and explain their position to avoid misunderstanding. ü Ensure speedy handling of the issue. Define the time frame for handling the case and giving a resolution. ü State that both sides of the dispute should act in good faith and collaborate to reach a settlement. Ensure that malicious use of this procedure (for example, to lie about someone) will also be disciplined. ü Prohibit victimization and penalizing of the worker bringing the grievance. ü Provide for an avenue to bring the grievance up to the next level of management if the worker is not satisfied with the settlement.
The procedure should be made known to all employees, and line managers should be trained on dealing with complaints in accordance with the procedure. Employers should also make sure that line managers and supervisors understand the importance of the grievance process and their personal role in maintaining harmony in the workplace amongst all employees.161
161 Singapore Tripartite Alliance for Fair Employment Practices (TAFEP): Tripartite guidelines on fair employment practices (Singapore, 2007, revised in 2011); Hong Kong Equal Opportunities Commission: Equal opportunity essentials kit for SMEs (Hong Kong, China); Hong Kong Equal Opportunities Commission: “Sexual harassment in the workplace”, in Good management practice series (Hong Kong, China).
222 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 36
Exercise 36. Grievance handling on harassment and discrimination
Handout 3. Sample procedure
Below is a sample procedure for handling equality related problems and grievances for SMEs developed by the Hong Kong Equal Opportunities Commission. The Equal Opportunities Commission encourages companies to adapt the procedure to their specific company needs, adopt it, and endorse it with the company seal.
Sample procedure for handling equality related grievances
This procedure explains what to do if you have an equality related problem, issue or complaint.
At_____[company name]______we understand that it may be hard for you to work to your full capacity if you are being treated unfairly or harassed at work. That is why we support equal opportunity in this workplace. You can obtain a copy of our equality policy, company work rules or code of conduct from______(say where)______.
____[Add name of person responsible for equality]_____ is responsible for making sure this procedure is followed and reviewed as necessary. If you bring a problem to us it will be handled confidentially, impartially and speedily.
What to do if you have a problem We have outlined the procedure for handling problems in steps. Not all of these may apply to you, or you may follow them in a different order than shown here.
Step 1: Talk to the person/people involved If you can, it is best to try and resolve issues yourself by talking with your supervisor about the problem within one day. Do this as soon as possible after the incident. We understand that you may not always feel comfortable doing so, particularly if the problem is with the supervisor. In that case, discuss the problem with your manager, or another person you can trust within one day. If you do not feel comfortable talking with you supervisor or manager by yourself, contact the union or a women’s or legal aid organization to join you.
Step 2: Talk to the person responsible for equality If the result of the discussions is not satisfactory and you would like to talk with another person over an issue or find out what your rights are, make time to talk to the human resources department or administration _____[insert name and contact details]____. They will meet with you as soon as possible, usually within a day. In general they will not discuss your problem with anyone else without your permission. The only exception to this is if you tell them something that may affect someone’s safety.
Depending on what you decide and after taking details from you, the human resources and/or the union will discuss and try to resolve the issue. If necessary, they will approach the relevant other person(s) involved in the issue as soon as possible (and preferably within three workdays to one week after meeting with you) and obtain their side of the story.
The human resources and/or the union representative will then decide if they have enough information to know whether your allegation happened (using the standard of proof that it is more likely than not to have happened). They will also work out whether disciplinary action is required.
223 Equality and non-discrimination at work in Cambodia: Manual Exercise 36
Where allegations are proved, the human resources representative (or your manager) will resolve the problem by: • Bringing the involved parties together for a meeting to reach an agreement/resolve issues if the allegation is not of a serious nature. • Taking appropriate disciplinary action (such as requiring an apology, counseling, an official warning, transfer, demotion, loss of promotion rights for a set period) against the person(s) responsible if the allegation is serious.
Step 3: Contact the labour department hotline, trade union, human rights or women’s organization or a legal aid centre. If you are unsatisfied with the decision reached under this procedure, or you do not feel comfortable bringing it to our attention, you can contact labour department hotline, workers’ organizations or a legal aid centre to get further advice.
______Date and place Signature of business operator / company chop
Source: Adapted for Cambodia from Hong Kong Equal Opportunities Commission: Equal opportunity essentials kit for SMEs (Hong Kong, China).
224 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 37
5.4 Consultation of indigenous groups and ethnic minorities
Exercise 37. Protection of traditional livelihoods of indigenous peoples: Case studies
Instructions for trainers
Aim – To analyze how Convention No. 111 applies to independent occupations, including the traditional livelihoods of indigenous peoples or ethnic groups, and to recognize the importance of consultation and participation of these groups in decision-making processes that concern their rights and interests.
Target group – Audiences with some previous understanding on non-discrimination.
Time – 20-30 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials – One sheet of flipchart paper and one marker pen for each group.
Steps.
Ø Share the aims of the exercise with participants and divide them into small groups. Distribute Handout 1, and assign some groups to read case A and some groups to read case B. Ask each of the groups to discuss their case, prepare a presentation and select a spokesperson to present it in plenary for a maximum of three minutes.
Ø Reconvene in plenary when the groups are ready. Ask volunteers to present the case. Facilitate general discussion on the issue and encourage participants to share their views. Give the roundup points using Handout 2 with the case responses as needed
Ø Roundup the discussion as follows: • Convention No. 111 applies to independent occupations, including traditional livelihoods of indigenous peoples and ethnic groups. • Indigenous peoples and ethnic groups need to participate in decision-making on issues which concern their rights and interests. For this purpose appropriate and effective consultation mechanisms need to be established.
225 Equality and non-discrimination at work in Cambodia: Manual Exercise 37
Exercise 37. Protection of traditional livelihoods of indigenous peoples: Case studies
Handout 1. Cases
Case A. Land concessions and livelihoods of the Suy people – Cambodia162
The Suy people are one of the smallest indigenous groups in terms of population living in Cambodia. They are only 1,200 people. Five of the existing 10 Suy villages are located in the Mount O Ral Wildlife Sanctuary, which was established in 1997. The traditional livelihoods of the Suy are based on non-timber forest products and swidden (shifting) cultivation in this area. Within the sanctuary are also located four Suy spirit forests and a sacred hot springs, which is the home of the Suy goddess Yeay Te, whose powers are recognized by the Suy and other Cambodians alike. The Suy have built a statue of Yeay Te at the springs and hold regular ceremonies to honour her.
In 2004, the Cambodian Government granted a 75-year 900 hectare tourism concession for the hot springs and surrounding area to a Chinese company named New Cosmos. Although the concession was described as an eco-tourism project, the company was to develop a large modern resort and golf course. The area that remained reserved for the Suy was insufficient to meet the needs of the five Suy villages and this became a source of conflict. The five Suy communities petitioned the Government to return the land, but received no response. The conflict between the Suy and the company escalated. For example, the Suy elders posted a guard by the statue of Yeay Te, so that the company could not remove it.
In 2009, a broader area of 9,985 hectares surrounding the five villages was granted to a Singaporean company named HLH Group for producing and processing genetically modified corn. The area was removed from the Mount O Ral Wildlife Sanctuary by a Government sub- decree. The concession entirely surrounded the five Suy villages, and caused two of the villages to lose 25 hectares of recognized community forest. Meetings with the Suy community members were only organized after the company had begun operations, and the environmental impact assessment was completed after significant areas of forest had already been cleared and corn planted. The environmental impact assessment anticipated significant loss of community members’ land, community forest and natural resources critical for Suy livelihoods, but the corn plantation was not stopped. Negative impacts on the Suy sacred sites and stress on water resources were also identified. The environmental impact assessment also noted that the corn plantation was expected to employ more than 1,000 farm workers. Up to date no one from the Suy villages has been employed at the plantations, but all farm workers have been recruited from other parts of the country.
Questions for discussion: 1. Based on the above information, has discrimination against the Suy occurred as a result of the land concessions to the New Cosmos company and the HLH Group? List each form of discrimination. 2. Do you think the land concessions could contribute to broader social and/or economic problems? 3. What policy (if any) should the Government introduce to prevent discrimination against the Suy and other local indigenous populations?
162 Indigenous People NGO Network (IPNN): The rights of indigenous peoples in Cambodia, Submission to the United Nations Committee on the Elimination of Racial Discrimination, 76th session 2010 (Phnom Penh, 2010).
226 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 37
Case B. Transmigration and livelihoods of the Dayak people – Indonesia163
Indonesia has a long history of transmigration programmes. In fact, the idea of relocating people from Indonesia's heavily populated areas to sparsely populated areas was first proposed during the 19th century.
During the 1980s and 1990s thousands of Javanese (predominantly Madurese migrants) took part in a Government transmigration programme from Java to Kalimantan. The Madurese were given employment opportunities and land that was traditionally owned or used by local native populations (predominantly Dayaks) for farming purposes. Vast expanses of land were also given to the transmigrants for the cultivation of palm oil farms. This had the effect of displacing the local indigenous populations and groups. The Dayak communities in East Kalimantan have not yet been compensated for the lands acquired as part of the transmigration projects.
Jobs in the new industries that were developed as a result of the transmigration programme (such as logging and mining) were also reserved for the Madurese. This angered many Dayak people. Many Dayaks saw that the large companies in Kalimantan preferred to give the majority of jobs to people from outside the province. Employers claimed this was because there was a significant skills shortage within Kalimantan. Feelings of resentment towards the national and multinational companies and Madurese began to surface. Along with cultural and ethnic differences, the Madurese and the Dayak have different religions. The Madurese are predominantly Muslims and most Dayaks are Christians. The mass influx of Madurese migrants significantly altered the demographic make-up of Kalimantan. In 2000, it was estimated that around one-fifth of the population of Kalimantan was comprised of transmigrants.
Questions for discussion: 1. Based on the above information, has discrimination against the Dayaks occurred as a result of the transmigration programmes? List each form of discrimination. 2. Do you think the effects of transmigration could contribute to broader social and/or economic problems? 3. What policy (if any) should the Government introduce to prevent discrimination against local indigenous populations where transmigration programmes exist? 4. Could similar case take place in Cambodia? Are ethnic minorities’ or indigenous peoples’ right to the land traditionally owned or used by them protected under Cambodian law?
163 ILO. 2008. “Individual observation on Convention No. 29 with respect to Indonesia,” in Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 97th Session, Geneva, 2008 (Geneva); World Bank. 1994. “Transmigration in Indonesia”, in Operations Evaluation Department Report No. 72, http://lnweb90.worldbank.org/ (accessed 16 Aug 2011).
227 Equality and non-discrimination at work in Cambodia: Manual Exercise 37
Exercise 37. Protection of traditional livelihoods of indigenous peoples: Case studies
Handout 2. Case responses
Cases A and B
The situation of the Suy people in Cambodia illustrates common challenges faced by indigenous peoples in many parts of the world. The negative impacts that the granting of concessions on land traditionally occupied by them has on their traditional occupations and employment constitute discrimination on the grounds of ethnicity. Discrimination in occupation is manifested in loss of community land and community forests, and stress on water and other natural resources indispensable for the Suy traditional occupations. In addition, the Suy were excluded from the newly created employment opportunities in the HLH corn plantations. Negative impacts on Suy sacred sites constitute a violation of their cultural rights. The broader economic and social problems related to the land concessions include, among others, environmental degradation, conflicts between the Suy community and local authorities, and increased poverty and frictions within the Suy community.164
The case about the Dayaks and the Madurese in Indonesia illustrates the types of unintended discriminatory effects that large scale transmigration to indigenous areas may have. Transmigration is often proposed by governments as a solution to problems associated with overpopulation and poverty, and it is designed to benefit both the people migrating to a new area and the host area receiving them. Intended benefits for the migrants who move to new areas under transmigration programmes include access to land and opportunities for employment. For receiving areas and its inhabitants the potential benefits include enhancing the area's industrial capacity, which may lead to economic and social development and growth. However, many examples of transmigration programmes all over the world have shown that it is not always a simple “solution” to poverty and overpopulation. While transmigration may create many opportunities for people, it needs to be carefully planned and implemented to minimize the tensions that often arise between indigenous and migrant populations. Discrimination against the Dayaks manifests as discrimination in employment (limited access to jobs in new industries) and as discrimination in occupation (deprivation of the traditional means of livelihood through allocation of native farmlands to the transmigrants, without adequate compensation). Some of the transmigrants were also working under great hardship and poor working conditions.
The ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) provides useful guidance on the policy measures that governments need to take to prevent discrimination against local indigenous peoples, for example when planning and implementing transmigration programmes. Useful guidance may also be sought from Convention No. 111, which covers both those who are employed in employment relations as well as those who are self-employed or engaged in independent occupations, including rural occupations. All women and men working in independent occupations need to have equal access to credit, market facilities and support services. With regards to the rights of indigenous peoples to their traditional livelihoods, an ILO publication articulates the issue as follows:
164 Indigenous People NGO Network (IPNN): The rights of indigenous peoples in Cambodia, Submission to the United Nations Committee on the Elimination of Racial Discrimination, 76th session 2010 (Phnom Penh, 2010).
228 II. Exercises 5. Exercises to review strategies for equality promotion Exercise 37
“Equality in respect of access to particular occupations implies that nobody should be excluded from exercising the occupation of their choice on discriminatory grounds. Where indigenous peoples pursue their traditional occupations, they should enjoy access to credit, market facilities, agricultural extension and skills training facilities on an equal footing with other parts of the population. In all these cases, state policies will need to focus on equal opportunity in providing the skills, assets and resources on an equal basis”.165
Some of the key principles established by Convention No. 169 include strengthening the traditional occupations of indigenous peoples by securing their access to land and resources, promoting their voluntary participation in vocational training programmes to support their access to new occupations, and taking measures to prevent discrimination in indigenous peoples’ admission to employment and their promotion and advancement at work (Articles 20-23).
The establishment of appropriate and effective mechanisms for the consultation of indigenous and tribal peoples regarding matters that concern them is the cornerstone of Convention No. 169.166 Convention No. 169 requires governments: (i) to consult the concerned indigenous peoples on measures which may affect them directly; (ii) to establish means for their participation in decision-making; and (iii) to enable the development of their own institutions and initiatives (Article 6(1)). The peoples concerned shall also have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control over their own economic, social and cultural development (Artcile 7(1)).
With respect to Cambodia, the UN Committee on the Elimination of Racial Discrimination (CERD) and the ILO Committee of Experts on Application of Conventions and Recommendations (CEACR) have expressed their particular concern about reports of the rapid granting of concessions on land traditionally occupied by indigenous peoples and the impacts that this may have on indigenous peoples’ traditional livelihoods. To mitigate the negative impacts they have urged the Government to ensure full consideration or exhaustion of procedures provided for under the Cambodian Land Law and relevant sub-decrees (Articles 2 and 5).167 The CERD has explicitly asked the Cambodian Government to develop protective measures to guarantee that concessions on lands inhabited by indigenous communities can only be issued after consultation with and the informed consent of the indigenous peoples. In case indigenous communities have applied to be registered legally in order to obtain land titles, issuing concessions to anybody else should be delayed until indigenous peoples’ rights to possess, develop, control and use their communal lands has been assessed and determined. The CERD has further encouraged corporate business entities engaging in economic land concessions in Cambodia to take into consideration their corporate social responsibility, as well as the rights and well-being of local populations.168
165 ILO: Eliminating discrimination against indigenous and tribal peoples in employment and occupation: A guide to ILO Convention No. 111 (Geneva, 2007). 166 ILO: “General observation concerning Convention No. 169” in Report of the Committee of Experts on the Application of Conentions and Recommendations, International Labour Conference, 97th Session (Geneva, 2009). 167 Committee on the Elimination of Racial Discrimination (CERD): Concluding observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD/C/KHM/CO/8-13, (Geneva, 2010); ILO Committee of Experts on the Application of Conventions and Recommendations: Direct request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111) with respect to Cambodia (Geneva, 2011, 2010). 168 Committee on the Elimination of Racial Discrimination (CERD): Concluding observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD/C/KHM/CO/8-13, (Geneva, 2010).
229 Equality and non-discrimination at work in Cambodia: Manual Exercise 38
6. Action planning exercises
Exercise 38. Action planning to promote equality at work
Instruction for trainers
Aim – To help participants to put into practice what they have learned during the training and plan concrete steps for action.
Time – 20-40 minutes
Seating arrangements – Small group seating around tables enabling participants to work in groups of three to six persons.
Training materials and preparation– One sheet of flipchart paper and one marker pen for each group. Draw the Cycle of continuous improvement on a flip chart or use the slide presentation for this exercise to show the cycle.
Steps
Ø Divide the participants in groups by location or organization. Show participants the cycle of continuous improvement and explain that action to promote equality and address discrimination is best done step-by-step, following a gradual approach of continuous improvement.169
Cycle of continuous improvement
1. Commit 2. Assess
6. Communicate 3. Define
5. Measure 4. Implement
169 United Nations Global Compact and Business for Social Responsibility: Supply chain sustainability: A practical guide for continuous improvement (2010).
230 II. Exercises 6. Action planning exercises Exercise 38
Ø Explain that Convention No. 111 is a promotional convention, which recognizes that discrimination cannot be eliminated overnight. The Convention requires ILO member States and different organizations to commit to equality and take proactive action to address discrimination. The steps in the cycle are: 1. Commit: Make the commitment of your organization, company or workplace to equality promotion public both outside and within your organization. For example, issue a national, regional or organization level equality policy addressing one or more priority issues. 2. Assess: Review existing policies and collect data on current equality related challenges in the field of your organization’s mandate or within your organization, company or workplace. 3. Define: Make an action plan to define the policy measures that need be put in place and the action that needs to be taken to address the priority issues. 4. Implement: Carry out the action. 5. Measure: Assess the progress made and identify remaining or newly emerging challenges. 6. Communicate: Publicize the work you have done and solicit feedback to further improve your strategy.
After one round of implementation return to point 1, make a new commitment, and define new priorities and a new round of measures for implementation.
Ø Ask each group to develop an action plan for promoting equality in employment and occupation for their organization using the cycle of continuous improvement. Ask each group to select one or more key discrimination issue(s) that they would like to address in the future, and to define practical measures and the first practical steps to take for realizing equality in the world of work.
Ø After the groups have finished their work, conclude the exercise by asking each group to briefly present their action plans in plenary as follows: • Do a “gallery walk”: Ask all groups to hang their flipcharts on the wall and assign one or two members to stay with their chart and explain it to others. Ask the other participants to walk around and discuss the action plans in informal groups. • Do the reporting in plenary in the form of a competition: Ask people to vote for the presentation with the best action plan. Identify the winning group after a quick tally and present them with a small price.
Ø Conclude the exercise by giving each participant a copy of the action plan for their location or organization and keep one copy for follow-up purposes.
231 Equality and non-discrimination at work in Cambodia: Manual Exercise 39
Exercise 39. Developing and implementing an inclusive workplace strategy
Instructions for trainers
Aim – To design practical strategies to reduce discrimination against people with disabilities and health conditions at the workplace.
Time – 20-40 minutes.
Seating arrangements – Small group seating at round tables or other arrangement that allows participants to work in groups of three to six persons.
Training materials and preparation – Copy the handouts and prepare flipchart papers and marker pens for each group.
Steps
Ø Share the aims of the exercise with participants and divide them into groups (from the same workplace or location or in similar types of companies or industries).
Ø Distribute the Handout with the Summary guide for developing an inclusive workplace strategy to participants. Ask the groups to review the Summary guide and develop an inclusive workplace strategy for their workplace (location, company or industry).
Ø Tell the groups to use the KISS and SMART principles when developing the strategy: • KISS: Keep It Short and Simple • SMART: Develop objectives and measures that are Specific, Measurable, Achievable, Relevant, Timely and time-bound.
Ø After the groups have finished their work, conclude the exercise by asking each group to briefly present their inclusive workplace strategies in plenary as follows: • Do a “gallery walk”: Ask all groups to hang their flipcharts on the wall and assign one or two members to stay with their chart and explain it to others. Ask the other participants to walk around and discuss their inclusive workplace strategies in small groups. • Do the reporting in plenary in the form of a competition: Ask people to vote for the presentation with the best workplace strategies. Identify the winning group after a quick tally and present them with a small price.
Ø Conclude the exercise by giving each participant a copy of their own strategy and keep one copy for follow-up purposes.
232 II. Exercises 6. Action planning exercises Exercise 39
Exercise 39. Developing and implementing an inclusive workplace strategy
Handout. Summary guide for developing an inclusive workplace strategy170
An inclusive workplace strategy is a tool for understanding what barriers may exist within the physical, social and cultural working environment for persons with a disability or health condition and how to remove these obstacles to create an inclusive workplace.
The major steps to developing an inclusive workplace strategy include: • Assess the current situation. • Determine the need for an inclusive workplace strategy. • Consult workers, supervisors, managers and people with disabilities or health conditions and draft the strategy. • Provide information and training for supervisors and workers in and outside the company/organization. • Adapt the workplace: Reasonable accommodation, universal design and standard precautions. • Promote the strategy within and outside the company or employing unit. • Evaluate and update the strategy.
The inclusive workplace strategy should include provisions for: • Equal opportunity and non-discrimination for employees with disabilities or health conditions, such as HIV or HBV. • Job retention by employees who acquire a disability or health condition. • Recruitment of employees with disabilities or health conditions.
170 Adapted from: ILO: Disability in the workplace: Trainers’ guide (Bangkok and Geneva, Factory Improvement Programme, 2006).
233 Equality and non-discrimination at work in Cambodia: Manual Exercise 40
7. Exercise to conclude a training workshop
Exercise 40. Workshop evaluation
Instructions for trainers
Aim – To identify whether and to what extent the training’s aims were met and to seek participants’ views on the training content and process, and what they have learned.
Time – 15-30 minutes.
Seating arrangements – Organize chairs in a big circle in the center of the room so that participants and trainers can sit together and see each other.
Training materials and preparation– Adapt and make a copy of the training evaluation form (Training aid 7) for all participants. Put the flipcharts with participants’ expectations and contributions from Exercise 2 in a place where everybody can see them
Steps.
Step 1. Discussion on the training’s aims– 10 minutes
Ø Recall the aims of the training and the learning objectives of participants.
Ø Ask the participants whether they feel their expectations have been met and to what extent they have achieved their objectives. Generate some discussion and provide the trainers’ assessment for each objective.
Step 2. Evaluation – 5-20 minutes
Ø Explain that evaluations are useful to improve future training. Both a written and oral evaluation will be carried out.
Ø Distribute the training evaluation form and give the participants time to complete it. Collect the forms before the closing ceremony for analysis by the trainers and organizers after the workshop.
Ø Optional - Ask participants to evaluate the training in the group. Each person will mention one strong point and one weak point of the training (for example, what they have discovered, what they liked and disliked, what they need further training on). The trainers join this evaluation.
Ø Summarize the main evaluation points, thank all for their participation and wish them good luck.
234 III. Guide to successful equality training
Part III. Guide to successful equality training
Promotion of equality and elimination of discrimination in employment and occupation requires action by many actors in the labour market. The key players include government officials in charge of labour and social affairs, education and economic and national planning, representatives of employers’ and workers’ organizations, the judiciary, businesses, as well as various non-governmental organizations and associations representing the interests of specific groups. Extensive advocacy, capacity building and knowledge sharing are needed to change mindsets and to enable these key stakeholders to play their part in promoting equality.
Trainers on equality and non-discrimination need to tailor the training contents to the specific needs of the audience in question. This section provides guidelines and tips for planning and delivering successful training on equality and non-discrimination in employment and occupation to adult audiences. It introduces the following issues: • What makes an effective adult training? • What makes a good trainer? • What and who to train? • How to promote gender equality in training? • How to plan a training workshop? • How to organize a training workshop? • How to measure the effectiveness of training?
1. What makes an effective adult training?
Respect and involve your audience Adults learn in different ways than young learners. Capacity building of adult professionals should always build upon their existing experience and expertise. Involve all participants in sharing their experiences and reflection on the application of newly introduced concepts and strategies in their daily work. For this purpose adult training is most effective when participatory training methods are used.
It is useful to remember that adults: • Come to training with established values, beliefs and opinions based on years of experience. • Compare new knowledge and information with previously learned experiences. • Tend to have a problem-solving orientation to learning. They relate the training to their own life and work, and find it most useful if they can use it immediately. • Have a deep need to be self-directing. • Have pride, are sensitive to treatment and need to be given respect. • Need a break frequently as adults’ style and pace of learning may have changed. They tend to concentrate less than children because the subjects are not completely new to them. • Finally, individual characteristics and differences among people increase with age.
Keeping the above points in mind makes a good basis for planning and delivering a successful adult training workshop!
Select the right training methodology Different people learn in different ways and at different rates. Some learn best by reading, others by listening and again others by involvement in activities. In adult training it is often most useful to combine different training methods to take the needs of different learners into account. Regardless of each trainer’s personal style, good communication and free exchange of information through a process of open dialogue should be at the heart of all training and human resources development.
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Many methods of instruction can be used during training. Traditional teaching most frequently relies on lectures, often in combination with visual aids and question and answer (Q&A) sessions. This type of training is content rich and strong in the cognitive learning domain. Lectures are most effective when the trainer is both an expert in the technical subject and able to deliver with a dynamic presentation style. When planning lectures it is however important to remember that the attention span of adult learners generally starts to waver after 20 to 30 minutes. For this reason, lectures need to be kept short and complemented with other methods to make learning more effective.
Participatory learning or dialogue education covers a range of interactive methods varying from brainstorming ideas, to discussion and analysis of case studies, to doing role-plays or games and analyzing their outcome. These methods are especially suitable for adult education as they use the learners’ own experience as a starting point and engage them to feel, think and act by applying the new content in their own context.
No single method is better than others. Each method has advantages and disadvantages and is appropriate at different stages of the training. It is best to use a combination of training methods and to alter the tempo of the training to keep trainees interested and to achieve the learning objective(s) in a systematic and logical flow.
& The example training programmes on equality and non-discrimination at work in Training aid 4 show how to combine presentations, practical exercises and Q&A sessions in training workshop agendas for different audiences.
Experiential learning cycle
Participatory training can also be described as “learning by doing” or “experiential learning”. Action and “experiencing” by participants form the starting point of their learning. The “theory” provided by the trainer in the form of lectures and presentations is kept brief: a short introduction of the session aims and instructions for the activity at the start of a session and a summary of the key learning points at the end of a session. The group first participates in an action by discussing a case study or doing a role-play or other practical exercise. Secondly, they share their feelings and observations on what they did. Then they move to the third step of analyzing the experience and the fourth step of drawing learning points and conclusions from the exercise with the trainer. The last step takes place after the training when participants apply what they have learned in their own situation. See the Figure below for the process.
“Learning by doing” methods have powerful learning effects because participants use all their skills and learn at many levels. During the ‘doing’, when playing a game or solving a riddle or problem, participants use their “mind”, “heart” and “body,” that is, all their intellectual, emotional and acting skills.
Key content and process of some main participatory methods are: • Brainstorming is about discovering and listing new ideas, comments and opinions. It can be done in smaller or larger groups. The main aim is to generate and create ideas in a free flow without judgments. • Buzz groups of two to three persons facilitate exchange of ideas, feelings, opinions and analysis allowing everybody to express their views in a small setting.
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• Role-plays enable participants to act out an experience and solve a problem as in real life. They can increase self-confidence and have an empowering effect on the role-players if done voluntarily by the players and facilitated well by trainers. • Case studies involve the presentation and analysis of a scenario or series of events, such as in a court case, that has happened or could happen, resulting in defining an opinion on how to go about solving a problem and developing recommendations.
For training that emphasizes active participation and open dialogue, it is essential that trainers use a style of training that is consistent with the values of participation. These comprise an open-minded and sharing attitude, respect for others, interest in diverse experiences, and willingness to change and engage in a critical review of opinions of self and others.
Figure. Experiential learning cycle
Step 1: Experiencing -
Doing an activity
Step 2: Step 5: Publishing - Application - in Sharing real life in own reactions and
context feelings on what happened
Step 4: Step 3: Generalizing - Processing - Drawing Analysing what conclusions and happened key learning points
2. What makes a good trainer?
The roles of the trainer are to teach and share their knowledge and skills, to facilitate the learning process of the participants, and to act as role model and change agent. A good trainer has both teaching and facilitation skills, expertise on the subject and capacity to create an enabling and safe training environment.
Trainers do not need to be ‘experts’ in all topics discussed during the training workshop. It is often useful to invite external resource persons to join the sessions on specific subjects. When external experts are invited it is however important that the trainer remains in charge of the session. Ensure that enough time is reserved for practical exercises which allow participants to apply what they learned to their own work, and interaction between the participants and the external specialist, e.g. in the form of asking questions.
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Trainers need good communication skills. They need to know how to: • Listen well. • Use easy language and vocabulary that participants can understand well. • Use non-verbal cues such as appropriate body language (e.g., how to stand and move around the room) and make eye contact with participants. • Be fair and respectful to participants. • Encourage diverse points of view and participation from everybody. • Be alert, notice and respond to participants’ changing needs. • Take control and let go as necessary.
Trainers also need to have good organizational skills. Successful training requires careful preparation, organization and time management.
The role of the trainer at the different stages of the experiential learning cycle:
• At the start of training – both in the training as a whole and in each session – the trainer takes control because participants are unfamiliar with the training contents and methods, and the group dynamics are not yet formed. Some participants may feel uncertain, apprehensive or shy about participating. At this stage the trainer’s role is to direct the training and make participants feel at ease by creating a friendly and supportive learning environment. • When the participants are comfortable, the trainer stimulates more active participation and encourages them to take the lead. At this stage, the trainer is mainly a facilitator. • After participants have carried out a task, contributed and shared their experience, the facilitator returns to the trainer’s role to help them switch from action to reflection and analysis, and finally, to draw the key learning points for application in real life.
The trainer also has a “sign posting” role, showing the participants how to learn and give them directions on where to go. In a knowledge economy and organization, participants need to learn how to find new information by themselves.
3. What and who to train?
Assess training needs To ensure the relevance of training it is important to tailor the training contents and methodology to suit the specific needs of each training audience. For this reason the first step in planning a training workshop is to agree on what you want to achieve, who you want to train and on what, and for what purpose. The key questions to ask when deciding on the training strategy and assessing the needs of the target audience include:
• How does training on equality and non-discrimination fit into the larger objectives and mandate of the organization(s) and what are the priorities? • What are the end results expected from the trainees after the training? • Who will benefit most from the training, which organizations or persons will most likely actually use the training and take further action measures? • What are the skills and competencies of the trainees before the training?
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• Do the training organizers and trainers have experience with organizing similar types of training? What are their strong and weak points and how can these be built on or overcome respectively in future training? • What in-house capacity on financial education and gender equality promotion exists and what expertise and resources are required from the outside?
After answering the above questions it is useful to prepare a one-page information or strategy note with a summary of the rationale for training a specific audience, their training needs, and the objectives, subjects and expected results of the training. This note is useful for resource mobilization and further planning. The training designer can also use the note to validate the identified needs, objectives and training subjects with the organizations initiating the training to ensure that all organizers agree on them.
& See Training aid 1. Information note – Equality and non-discrimination at work in East and South-East Asia: Training package and 2. Checklist for trainers: Training preparation.
Select the right participants After formulating the training strategy and assessing the training needs, the next step is to decide on the selection criteria that the nominating organizations should apply and on the profile of participants to be nominated. Be clear and specific about the selection criteria, profile and number of nominees to nominating organizations. If possible, ask for a number of candidates so that the most suitable candidates can be selected on the basis of individual merit and the desirable group composition during the training.
It is advisable to ensure a balanced representation among participants in terms of sex, age, type of organization and other criteria, as appropriate, such as ethnicity, social or national origin or health status, cultural, religious or political background. This is to allow for effective voice and representation of views and perspectives of all and to avoid domination of one group over the other in the training: • Generally the male/female ratio of representation should range between 40 and 60 per cent in mixed groups to allow for sufficient voice and balanced representation of both sexes. • Ensure a representation rate of at least one-third of participants from the under- represented, minority or disadvantaged group. Otherwise it will be difficult for them to have sufficient voice. • Avoid tokenism, in other words, inviting only one or two persons of the under- represented group to make it look as if the training provides “equal opportunities and chances” for all. • If capacity building among the under-represented group is part of the training aims and strategy, set aside more training places for them; for example, two-thirds women and one-third men when the capacity of women needs to be built to redress the effects of (past) discrimination or for role-model purposes.
4. How to promote gender equality in training?
Selection of trainees and trainers • Try to attract both women and men trainees in sufficient numbers. Consider who needs to be trained as a matter of priority and set targets for the participation and representation of women among the training team and the participants. • Be sensitive to practical obstacles to women’s participation, such as their family responsibilities or concern for personal safety and security. Provide practical and logistical arrangements to facilitate their participation, such as selecting times and
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training venues that are convenient, and ensuring safe transportation, venues and accommodation. • Decide whether male and female participants can be trained together or require separate training. If separate trainings are needed for women-only and men-only groups consider whether these trainings could be followed by mixed-sex training.
Training content • Identify participants’ perspectives on gender equality promotion at the early start of the training by carrying out a quick scan of participants’ gender perspectives and set the scene for effective gender training in an attractive and non-threatening way. • Avoid creating a divide between women and men, for example, do not stereotype all women as victims and all men as aggressors as this is misleading and not true. • Resist making sweeping generalizations and ensure respect for everybody. Draw out the women’s perspective and respect the men’s perspective, and vice versa as appropriate. • Design and use training materials that are relevant to the day-to-day experience of female and male participants and highlight gender problems from the perspective of women and men. Use language that addresses and appeals to both sexes. • Address concerns about different forms of discrimination simultaneously (i.e. sex, age, race, ethnicity, social or national origin and migrant status), as it is not convincing and ineffective to address only gender inequalities but not other forms of inequalities that workers may face on the grounds of their race, ethnicity, origin or health status.
Training process • Ensure enough ‘speaking time’ for both sexes and voice for the minority. Men are generally more used to public speaking and tend to talk longer. If this happens, let the speaker finish but ask him to be brief. Women are often shy and need to be encouraged to speak. However, when a woman is too talkative, the same rule applies. • Actively involve men in gender discussions. • Do no assume that all women have the same understanding of gender issues. Keep in mind that women are not a homogenous group and will usually be more loyal to men of their own socio-economic or religious and cultural group, than to women from other backgrounds. • Address sexist jokes proactively. If men or women feel threatened by the subject they may start to make sexist jokes, use derogatory language about women (or men). It is important to make it understood (politely but firmly) that disrespectful behaviour is not tolerated.
& See Training aid 3. Checklist: How to address the gender dimension in training on equality and non-discrimination.
5. How to plan a training workshop?
Design the training agenda The design of the training programme will differ upon the priorities and resources of the training organizers, the training objectives and the size, make-up and needs of the target groups.
& See Training aid 4. Example training programmes on equality and non-discrimination at work for training programmes for various audiences. These training programmes are examples,
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not blueprints and need to be adapted and tailor made to the needs of the participants and the situation at hand for every training.
& See also Training aid 5. Checklist for organizers: Planning of training.
Tips on time management
• Time the training in a period that suits the trainees. • Allocate an appropriate amount of time for each session and each activity, and provide a break every 1.5 to 2 hours. • Set a realistic timetable for the training. Effective learning is intensive, so keep the total training hours to six hours per day (generally four sessions of 90 minutes each spread over the day) and allow for sufficient breaks. This enables participants to informally discuss the training with each other. • Stick to the time. Make sure that a lecture is not longer than 20-30 minutes maximum. Cut lectures short if necessary. If you know you tend to speak longer than planned, set a strict time limit for yourself and use your watch for each presentation. • Provide for a variety of training methods in each session because people concentrate better for longer periods if they can participate actively. Ask open questions during every presentation. • The time of day also has effects on the concentration of your participants. Generally, people are fresh and ready to learn in the morning and are less concentrated right after lunch. • If the time is up before you can finish an active session or a lively discussion, ask for a collective decision from the participants whether and for how long to continue. Do not keep people hungry because they will not learn on an empty stomach.
Plan your training sessions Every trainer needs to prepare a session guide for each training session. A session guide is like a cooking recipe: It tells you what training content and materials you need at every step of the training process and for how long.
When preparing the training content, materials and process, it is helpful to ask: “What participants must know and could know?” It is always tempting for trainers to give participants as much information as possible. However, people cannot absorb too much information and will stop listening if lectures are too long. Smart trainers construct their session plan around what participants must know and build up the training step by step in a logical way.
There are three basic components in a typical training session as follows: 1. Welcome, introduction and objectives – Always briefly explain the objectives for each session to participants. 2. Actual training: • Select an exercise to start or do during each session. Keep in mind that after two weeks people generally tend to remember 20 per cent of what they hear, 50 per cent of what they hear and see, and 90 per cent of what they say and do. • Ensure that all have equal opportunities to participate in the process. Gently encourage shy and quiet participants in the group to participate and tell those who are too dominant to give others opportunity to speak.
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3. Conclusion – Always finish a session with one to three key messages and start every session with a brief summary of the previous session.
Prepare your training materials Every trainer needs to prepare for every session beforehand. The action-based exercises require knowledge about the training content and preparation of the training aids which usually include a wide range of things, from basic stationery like pens, papers, markers, scissors and tape, to handouts, case studies, pictures and other visual aids. Sometimes it requires preparing resource persons to give a specific technical input.
& See Exercises 1-36 in this book. The exercises include both instructions for trainers as well as handouts for participants. Use the training materials, or adapt them to suit the needs of your target audience.
Before each training session, consider other details such as: • Are the language, types and quality of the visual aids appropriate for everybody? • Do you have enough copies of all training materials for all participants? • Make sure you have a few alternative exercises in reserve in case the need arises to change the training programme.
6. How to organize a training workshop?
Training venue Choosing an adequate training location is important because the type and set-up of the room(s) affect your participants’ ability to learn. Action-oriented and experiential learning needs physical space to move around, because it involves “talking” and “doing”.
When selecting the training venue, you should: • Find a venue that is convenient for participants, for example, is it safe for female participants? • Visit the training venue in advance to make sure that it is suitable for the types of training activities you are planning to do. Ensure that the space is large enough to accommodate all participants. If not, find a better alternative. • Walk around the training venue and inside the training room(s) before the training, sit in various seats to check the view and change the seating arrangements if necessary. • Allow for enough space to enable participants to move around and for easy repositioning of chairs, tables or mats. • Check and try to eliminate possible distractions and make sure: • The training place is away from noise and traffic. • There is no blockage of view: Everyone can see everyone else in the room. • The sound system works and persons sitting the farthest from the trainer and one another can hear the trainer and each other talking.
Seating arrangements Regarding the seating arrangements, the standard class room arrangement of chairs and tables in a row is not suitable for this type of training. Seating participants in smaller circles around tables or in a U-shape arrangement is recommended.
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7. How to measure the effectiveness of training?
Measure the impact of your training It can be useful to measure changes in the knowledge, skills and attitudes of participants by asking them to fill in a questionnaire before and after the training. &See Training aid 6. Pre- and post-questionnaire.
Evaluations should be done during and at the end of every training workshop. A workshop that spans over several days should include daily evaluations as well as verbal and written evaluation exercises at the end of the course. • A daily evaluation is an immediate and simple assessment of participant’s feelings and views about the training at the end of each day to check whether the training is on the right track and to get ideas for fine-tuning the training for the next sessions. • An end-of-the course evaluation is more comprehensive. It seeks participants’ views on their satisfaction with the training, what they have learned, their reactions on the training contents and process in the entire course, and seeks their suggestions to improve future training workshops on equality and non-discrimination.
& See Training aid 7. Evaluation form and Exercise 36. Workshop evaluation.
Report on results achieved Writing a report about the training is usually part of every training to serve as a reference for future action, for the record, for superiors or for donors. Preparing and writing a report is usually a team effort. To ensure that the work will be done, clearly identify the persons who will take responsibilities for what. The process of report writing involves the following steps:
1. Collect information: Keep notes about the training and summarize group work outcomes during the training. 2. Organize the information: Decide how to organize the information: by topic, objective or day of the workshop and make an initial outline of the report. 3. Analyze the information: Identify key issues in the workshop, participants’ learning process (how they learned and what they were particularly or least interested in), key findings and lessons learned. 4. Write the report: A good report should be clear and concise and cover only important information. Writing in chronological order by listing all the workshop activities and who did them is not recommended since this results in very long reports. 5. Check and review the report: Once drafted, the report should be checked, reviewed (and usually edited for better reading) by one of the trainers to make sure that the information is correct and no important information is left out.
243 Equality and non-discrimination at work in Cambodia: Manual Training aid 1
Part IV. Training aids
Training aid 1. Information note – Equality and non-discrimination at work in Cambodia: Manual
1. What is the Manual about?
The Manual introduces the internationally recognized concepts and approaches to eliminate discrimination and promote equality of opportunity and treatment at work. It explains why the elimination of discrimination at work is fundamental for promoting social justice and economic development both within and across countries. The Manual provides a range of strategies, practical measures and tools from international and national experience to combat discrimination and promote equality in workplaces. It aims at helping policy-makers and practitioners in the employment and labour fields to: • Design and implement policies and practical measures to promote equal opportunities and treatment and eliminate discrimination in employment and occupation • Strengthen and enforce regulatory frameworks for ensuring fair employment and working conditions for all workers in the country.
The Manual includes five parts: I. Equality and non-discrimination: Key concepts contains a short introduction to key concepts related to equality and non-discrimination at work, and main strategies for government, employers’ and workers’ action to promote equality and prevent and address discrimination. II. Exercises contains 36 action-oriented exercises introducing key concepts and strategies to promote equality and non-discrimination in employment and occupation. The total duration of exercises is around 25 hours. Trainers can select suitable exercises and make a training agenda tailored to the specific needs and interests of their training audience. III. Guide to successful equality training provides practical guidance and tips for trainers on planning and implementing participatory training. IV. Training aids includes practical checklists and tools to support trainers and training organizers in designing, organizing and conducting training on equality and non- discrimination at work. The training aids include model training programmes illustrating how the exercises can be combined in training for different audiences, such as trainers, labour officials, employers or workers and their organizations, or zooming in on specific grounds of discrimination like sex and gender, national or social origin or health status. V. Electronic training tools on DVD provides slide presentations for introducing or concluding sessions or exercises, as well as video presentations for use during the sessions or breaks.
2. Who can use it?
The training package is intended for officials, experts and trainers in the employment, labour, equality and human and workers’ rights fields, including: • Officials in labour and personnel departments at the national, provincial and municipal levels in charge of policy formulation, implementation, enforcement and promotion • Managers and human resource personnel from companies and organizations • Representatives of employers’ and workers’ organizations, universities, organizations of women, indigenous peoples, migrant workers, persons with disabilities or living with HIV and AIDS, other associations, mass organizations and federations and civil society leaders.
244 IV. Training aids Training aid 1
3. How did it come about?
The training package was developed and issued by the ILO to support the application of ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) in Cambodia. Since the onset of increasing global integration this core labour standard has been considered as one of the main, minimum ground rules for a fair globalization. Equality and non- discrimination are essential for realizing decent work, and sustainable economic and social development and efficiency.
245 Equality and non-discrimination at work in Cambodia: Manual Training aid 2
Training aid 2. Checklist for trainers: Training preparation
The trainers can use the following checklist to facilitate training preparation.
No. Trainers’ tasks in training preparation Yes No 1 Am I clear about the training objectives? 2 Do I have the following information about my participants? • Total number • Age groups • Numbers of male and female participants • Education, work and other background information 3 Are there any participants with specific needs (disabilities, members of ethnic groups, particular gender or other cultural considerations, or other special circumstances) and are these needs addressed?
4 Have I checked with the workshop organizer about the place and timing of the training? 5 Have the training programme and schedule been developed? 6 Have I discussed with other co-trainers (if any) about the content, training programme, training methods, and division of work in the preparation and the delivery of the training? 7 Have I included participatory training methods that are suitable for the participants? 8 Have I developed or adapted the session plans and the training materials for this group of participants?
9 Am I clear about the key messages (what participants must know) for each training session?
10 Are the training aids and materials appropriate for the learning style of the participants? Are they available in sufficient numbers?
11 Do I have games and exercises for energizers and group dynamics? 12 Do I have the training evaluation forms or a game or exercise for getting participants’ feedback about the workshop? Before the training starts: 13 Have I double-checked with the workshop organizer if all the logistical arrangements are in good order before the workshop begins, e.g., the training venue, rooms and other facilities, and workshop materials? 14 Is the seating arrangement suitable for the workshop opening and my first session? 15 Are my notes, computer, electrical equipment, and all training materials ready for use?
246 IV. Training aids Training aid 3
Training aid 3. Checklist: How to address the gender dimension in training on equality and non-discrimination
If most of the answers to the following questions are ‘yes’, it means the training is gender- responsive. If more than half of the answers are ‘no’ or ‘not sure’, more attention is needed to integrate gender concerns into the training.
Not Yes No Strategic fit sure ü ü ü
1. Does the equality and non-discrimination training programme include explicit attention to gender issues?
2. In case there are pronounced gender inequalities in employment and workplaces, how are these addressed during the training? 3. In case women are barred from attending training for mixed male and female audiences, is there a need to train men and women separately? Not Yes No Planning and design – Getting the right people and organizations sure ü ü ü 4. Does the planning document show that a gender perspective will be included in the equality and non-discrimination training programme? 5. Have participants and resource persons been invited from organizations who are mandated, committed and capable of addressing gender equality in employment and occupation?
6. Are gender issues reflected in the training materials for the meeting/workshop?
7. If there are gender issues, are they reflected on the agenda?
8. If gender expertise is required at the workshop, has it been included in the terms of reference as a prerequisite for selecting workshop trainers/facilitators and resource persons? 9. Are sufficient resources for gender expertise included in the budget?
10. Do logistical arrangements allow for equal, adequate and safe participation of women and men? 11. Is there a gender balance among key speakers and participants? 12. If it is expected that nominating organizations will mainly select men, have any specific measures been undertaken to encourage the selection of women as participants and resource persons? 13. Is there a need for training more women to redress the effects of (past) discrimination or for rolemodel purposes?
247 Equality and non-discrimination at work in Cambodia: Manual Training aid 3
Not Yes No Preparation and implementation sure ü ü ü 14. Do the trainers/facilitators and resource persons have sufficient gender knowledge in general and in relation to the training themes? 15. Are the logistics organized in such a way that they facilitate participation of men and women (e.g. convenient meeting time, date and venue, safe transportation and lodging for women)? 16. Are both men and women equally encouraged and given opportunity to give their views and provide inputs to the discussion and meeting activities? 17. Is there a mechanism in place that checks and monitors the following during the training? • Results and outcomes of workshop discussions on gender equality • Balanced contributions by male and female participants • Sex balance among resource persons and participants • Resources allocated and spent on promoting gender equality Not Yes No Reporting sure ü ü ü 18. Does the report give a breakdown of male and female participants and indicate their status (e.g. junior, middle, senior)? 19. Does the report specify whether gender issues were included on the agenda, how they were discussed and what progress was made in promoting gender equality? 20. Does the report indicate how men and women took part in the discussion, activities and decision-making (equally or unequally) during the training?
248 IV. Training aids Training aid 4
Training aid 4. Example training programmes on equality and non-discrimination at work
The following model training agendas are intended to help trainers and training coordinators in designing training agendas for different types of training workshops on equality and non-discrimination at work. The following model training programmes are provided:
1. Model 1. Training of trainers’ workshop on non-discrimination and equality at work - 5 days 2. Model 2. Workshop for labour officials, employers’ and workers’ organizations and other strategic partners (Generic) - 2.5 days 3. Model 3. Workshop with employers and their organizations – 2 days 4. Model 4. Workshop for workers’ organizations – 2.5 days 5. Model 5. Workshop on non-discrimination and gender equality at work 6. Model 6. Workshop on addressing discrimination on the grounds of ethnicity, religion and social origin 7. Model 7. Workshop on addressing discrimination against persons with disabilities 8. Model 8. Workshop on addressing discrimination on the grounds of health status1
249 Equality and non-discrimination at work in Cambodia: Manual Training aid 4
Model 1. Training of trainers’ workshop on non-discrimination and equality at work - 5 days
Time Day 1 Day 2 Day 3 Day 4 Day 5 08.30-10.00 Opening ceremony Roundup of Day 1 Roundup of Day 2 Roundup of Day 3 Roundup of Day 4 Exercise 1. Introduction Exercise 5. Gender Presentation 6. Disability Training by Group 1 Presentation 3. Methods Exercise 2. Expectations stereotypes Exercise 18A. Disability and Peer reviews and Exercise 28. Sexual Presentation 4. Gender reasonable accommodation Comments harassment Exercise 16. Protection Exercise 17. Affirmative and equality action
Morning break 10.00 – 10.30 hrs 10.30-12.00 Exercise 3. Bias Exercise 21. Equal pay Exercise 13. HIV Training by Group 2 Exercise 38. Action Presentation 1. Principle Exercise 23. Harassment Presentation 6. Health Peer reviews and planning to promote Exercise 8. Identifying status Comments equality at work discrimination Exercise 15C.Inherent job Presentation 2. Concepts requirements Exercise 19. Job-ads
Lunch 12.00 – 13.30 hrs 13.30-15.00 Exercise 9. “Do I have a Presentation 5. Presentation and Training by Group 3 Presentation 7. Non- chance to get the job?” Ethnicity, religion and discussion:. Design and Peer Reviews and discriminatory human Exercise 11. Why social origin planning of a training Comments resource management equality? Exercise 20. workshop Presentation 8. Presentation 1. Recruitment practices Group work Strategies Rationale Exercise 18B. Religion Exercise 40. Evaluation
Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Exercise 14. What type Presentation and Group work continued Training by Group 4 of discrimination is it? discussion: Training Peer reviews and methodology Comments
250 IV. Training aids Training aid 4
Model 2. Workshop for labour officials, employers’ and workers’ organizations and other strategic partners (Generic) - 2.5 days
Time Day 1 Day 2 Day 3 08.30-10.00 Session I. Opening Session VI. Gender Session X. Strategies to promote equality Opening ceremony Review of Day 1 Review of Day 2 Exercise 1: Jigsaw puzzle: Self Exercise 5. Gender stereotypes Presentation 3. Methods introduction Presentation 4. Gender equality at work Exercise 28. Action against sexual Exercise 3. Be aware of your own bias Exercise 16. Protection and equality, Q&A harassment Presentation 1. Principle and standards Morning break 10.00 – 10.30 hrs 10.30-12.00 Session II. Key concepts Session VII. Gender (cont.) Session XI. Action planning Exercise 8. Identifying discrimination: Exercise 21. Equal pay for work of equal value Exercise 38. Action planning Discussion Exercise 23. Harassment Session X. Conclusion Presentation 2. Concepts and principles Exercise 40. Workshop evaluation and closing Exercise 19. Job-ads
Lunch 12.00 – 13.30 hrs 13.30-15.00 Session III. Why is equality important? Session VIII. Ethnicity, religion and social Exercise 9. “Do I have a chance to get the origin job?” Exercise 10. Rules of the game: Role-play Exercise 11. Why is equality good? Presentation 5. Ethnicity, religion and social Session IV. Types of Discrimination origin Exercise 14. What type of discrimination Exercise 20. Discriminatory recruitment? is it? Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Implementation at national Session IX. Disability and health status level Exercise 13. Quiz and discussion on HIV Presentation: National legal framework on Presentations 6. Disability and health non-discrimination and equality, Q&A conditions Exercise 18A. Disability Exercise 15C. Health status
251 Equality and non-discrimination at work in Cambodia: Manual Training aid 4
Model 3. Workshop with employers and their organizations – 2 days
Time Day 1 Day 2 08.30-10.00 Session I. Opening Review of Day 1 Opening ceremony Session VI. Disability and health status Exercise 1. Jigsaw puzzle: Self introduction Exercise 13. Quiz and discussion on HIV Session II. Key concepts: Equality and non-discrimination at Presentations 6. Discrimination based on disability and health status work Exercise 15C. Inherent requirements of the work Exercise 3. Be aware of your own bias Exercise 18A. Reasonable accommodation: Case studies, Q&A Presentation 1. Principle and standards
Morning break 10.00 – 10.30 hrs 10.30-12.00 Exercise 8. Identifying discrimination: Discussion Session VII. Practical guidance for employers Presentation 2. Concepts and principles Presentation 3. Methods of application of Convention No. 111 Exercise 19. Writing non-discriminatory job advertisements, Q&A Exercise 32. Review of company equal opportunity policies, Q&A Session III. Why is equality important? Exercise 9. “Do I have a chance to get the job?” Role-play Exercise 11. Why is equality good for people, society and business? Q&A
Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV. Gender equality Session VIII. Action planning Exercise 5. Gender stereotypes: Facts or opinions Exercise 38. Action planning to promote equality at work Presentation 4. Gender equality at work: Key issues and Session IX. Conclusion strategies Exercise 40. Workshop evaluation Exercise 22. Discrimination in pay and benefits Closing Exercise 25. Termination of employment during pregnancy: Case studies
Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Ethnicity, religion and social origin Presentation 5. Addressing discrimination based on ethnicity, religion and social origin: Key issues and strategies Exercise 20. Discriminatory recruitment practices? Case studies Exercise 18B. Reasonable accommodation: Case studies
252 IV. Training aids Training aid 4
Model 4. Workshop for workers’ organizations – 2.5 days
Time Day 1 Day 2 Day 3 08.30-10.00 Session I. Opening Review of Day 1 Review of Day 2 Opening ceremony Session VI. Disability and health status Session X. Exercise 1. Jigsaw puzzle: Self introduction Presentations 6. Disability and health status Exercise 35. Collective bargaining for gender Session II. Key concepts: Equality and non- Exercise 13. Quiz and discussion on HIV equality: Mock collective bargaining discrimination at work Exercise 15C. Inherent requirements of the negotiations Exercise 3. Be aware of your own bias work Presentation 1. Principle and standards Exercise 18A. Reasonable accommodation: Case studies Morning break 10.00 – 10.30 hrs 10.30-12.00 Exercise 8. Identifying discrimination: Session VII. Trade union strategies to Session IX. Action planning Presentation 2. Concepts and principles promote equality Exercise 38. Action planning to promote Exercise 19. Non-discriminatory job Presentation 3. Method of application of equality at work advertisements Convention No. 111, Q&A Session X. Conclusion Session III. Why is equality important? Exercise 31. New union strategies to protect Exercise 40. Workshop evaluation Closing Exercise 9. “Do I have a chance to get the equal rights of workers job?” Exercise 11. Why is equality good? Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV. Gender equality Session VIII. Trade union strategies to Exercise 5. Gender stereotypes: Facts or promote equality (cont.) opinions Exercise 33. Review of collective Presentation 4. Gender equality at work: agreements on equality promotion Key issues and strategies Exercise 34. Identifying priorities for Exercise 22. Discrimination in pay and equality bargaining benefits Exercise 25. Termination during pregnancy Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Ethnicity, religion and social Session IX. origin Exercise 35. Collective bargaining for Presentation 5. Discrimination based on gender equality: Preparation ethnicity, religion and social origin Exercise 20. Discriminatory recruitment practices? Case studies Exercise 18B. Reasonable accommodation
253 Equality and non-discrimination at work in Cambodia: Manual Training aid 4
Model 5. Workshop on non-discrimination and gender equality at work – 2.5 days
Time Day 1 Day 2 Day 3 08.30-10.00 Session I. Opening Roundup of Day 1 Roundup of Day 4 Opening ceremony Session VII. Access to employment Session XI. Strategies to promote equality Exercise 1. Jigsaw puzzle: Self introduction Exercise 16. Protection and equality: Case (cont.) Session II. Key concepts: Equality and study Presentation 3. Methods of application of non-discrimination at work Presentation: Gender equality in the national Convention No. 111 Exercise 3. Be aware of your own bias labour market, Q&A Exercise 28. Action against sexual Presentation 1. Principle and standards harassment
Morning break 10.00 – 10.30 hrs 10.30-12.00 Session III. Key concepts: Equality and Session VIII. Pay equity Session XII. Action planning non-discrimination at work Exercise 21. Equal pay for work of equal value Exercise 38. Action planning to promote Exercise 8. Identifying discrimination: – Job evaluation: Case studies equality at work Discussion Exercise 22. Discrimination in pay and benefits Session XIII. Conclusion Presentation 2. Concepts and principles Q&A Exercise 40. Workshop evaluation and Exercise 19. Writing non-discriminatory job closing advertisements, Q&A Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV. Why and how? Session IX. Conditions of work Exercise 9. “Do I have a chance to get the Exercise 23. Identifying harassment at the job?” Role-play workplace: Case studies Exercise 11. Why is equality good for Exercise 17. Affirmative action for gender and people, society and business? ethnic equality Presentation 1. Rationale Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Types of discrimination Session X. Termination of employment Exercise 14. What type of discrimination is Exercise 25. Termination of employment it? during pregnancy Session VI. Gender equality at work: Key Exercise 26. Retrenchment issues and strategies Exercise 27. Retirement age Exercise 5. Gender stereotypes: Facts or opinions Presentation 4. Gender equality at work
254 IV. Training aids Training aid 4
Model 6. Workshop on addressing discrimination on the grounds of ethnicity, religion and social origin – 2 days
Time Day 1 Day 2 08.30-10.00 Session I. Opening Roundup of Day 1 Exercise 1. Jigsaw puzzle: Self introduction Session VII. Fair treatment at work Session II. Key concepts Exercise 7. Multiculturalism: Game Exercise 3. Be aware of your own bias Presentation 5. Ethnicity, religion, origin Presentation 1. Principle and standards Exercise 18B. Reasonable accommodation: Case studies
Morning break 10.00 – 10.30 hrs 10.30-12.00 Session III. Key concepts Session VIII. Access to occupation and protection of traditional Exercise 8. Identifying discrimination: Group work livelihoods Presentation 2. Concepts and principles Exercise 37. Protection of traditional livelihoods of indigenous Exercise 19. Job-ads peoples: Case studies, Q&A
Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV: Why and how? Session IX. Strategies to promote equality Exercise 9. “Do I have a chance to get the job?” Presentation 3. Methods Exercise 11. Why is equality good? Exercise 17. Affirmative action Presentation 1. Rationale Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Types of discrimination Session X. Action planning Exercise 14. What type of discrimination is it? Exercise 38. Action planning Session VI. Ethnicity, religion, origin Session XI. Conclusion Exercise 9. Rules of the game: Role-play Exercise 40. Workshop evaluation and closing Exercise 20. Recruitment practices
255 Equality and non-discrimination at work in Cambodia: Manual Training aid 4
Model 7. Workshop on addressing discrimination against persons with disabilities – 2 days
Time Day 1 Day 2 08.30-10.00 Session I. Opening Roundup of Day 1 Opening ceremony Session VII. Employment situation of persons with disabilities Exercise 1. Jigsaw puzzle: Self introduction exercise (Icebreaker) Presentation: Persons with disabilities in the national labour market Session II. Key concepts: Equality and non-discrimination at Session VIII. Reasonable accommodation work Exercise 18A. Reasonable accommodation: Case studies, Q&A Exercise 3. Be aware of your own bias Presentation 1. Principles and standards
Morning break 10.00 – 10.30 hrs 10.30-12.00 Session III. Key concepts: Equality and non-discrimination at Session IX. Reasonable accommodation (cont.) work Exercise 39. Developing and implementing an inclusive workplace Exercise 8. Identifying discrimination: Discussion strategy Presentation 2. Concepts and principles Exercise 19. Writing non-discriminatory job advertisements, Q&A
Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV. Why and how? Session X. Strategies to promote equality Exercise 9. “Do I have a chance to get the job?” Role-play Presentation 3. Methods of application of Convention No. 111 Exercise 11. Why is equality good for people, society and business? Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Types of discrimination Session XI. Action planning Exercise 14. What type of discrimination is it? Exercise 38. Action planning to promote equality at work Session VI. Key concepts: Disabilities and equality at work Session XII. Conclusion Exercise 12. Disability and ability Exercise 40. Workshop evaluation Presentation 6. Discrimination against persons with disabilities Closing Exercise 15. Inherent job requirements or discrimination? Case studies, Q&A
256 IV. Training aids Training aid 4
Model 8. Workshop on addressing discrimination on the grounds of health status – 2 days
Time Day 1 Day 2 08.30-10.00 Session I. Opening Roundup of Day 1 Opening ceremony Session VII. Reasonable accommodation Exercise 1. Jigsaw puzzle: Self introduction Presentation 6. Discrimination based on health status Session II. Key concepts: Equality and non-discrimination at work Exercise 18A. Reasonable accommodation: Case studies, Q&A Exercise 3. Be aware of your own bias Presentation 1. Principle and standards
Morning break 10.00 – 10.30 hrs 10.30-12.00 Session III. Key concepts: Equality and non-discrimination at work Session VIII. Employment situation of persons living with HIV and Exercise 8. Identifying discrimination: Group work other health conditions Presentation 2. Concepts and principles Presentation: Employment situation of persons living with HIV and Exercise 19. Writing non-discriminatory job advertisements, Q&A other health conditions in the national labour market
Lunch 12.00 – 13.30 hrs 13.30-15.00 Session IV. Why and how? Session IX. Strategies to promote equality Exercise 9. “Do I have a chance to get the job?” Role-play Presentation 3. Methods of application of Convention No. 111 Exercise 11. Why is equality good for people, society and business?
Afternoon break 15.00 – 15.30 hrs 15.30-17.00 Session V. Types of discrimination Session X. Action planning Exercise 14. What type of discrimination is it? Exercise 38. Action planning to promote equality at work Session VI. Key concepts: Health status and equality at work Session XI. Conclusion Exercise 13. Quiz and discussion on HIV Exercise 40. Workshop evaluation Exercise 15C. Inherent job requirements or discrimination: Case Closing studies
257 Equality and non-discrimination at work in Cambodia: Manual Training aid 5
Training aid 5. Checklist for organizers: Planning of training
No. Tasks in planning of training Yes No 1. Have I conducted a training needs analysis? 2. Do I understand the nature of the problems and am I sure these will be addressed by providing training? 3. Have the priority training needs been identified? Are they clear? Can they be met during the planned training? 4. Do I have a training strategy? Do I know what type of programme to organize and how to deliver it? 5. Am I clear about the objectives of the training? 6. Have I identified the participants who will most likely benefit from the training and/or have the potential to share the knowledge and skills from the training? 7. Have I considered cooperation with other groups or organizations that may benefit from the same types of training? 8. Do I have trainers?
9. Will an interpreter be needed in the training? 10. Are the inputs and resources available for this training? 11. Have I checked the time and place of the training with the participants and the trainers? 12. Do I have the training programme from the trainers? 13. Have I sent letters of invitation and the nomination forms to participating groups or organizations?
14. Have I received confirmation of participation and the nomination forms from all participants or participating agencies?
15. Have I organized and consulted with the trainers on other logistical details, including: • Finalization of the list of participants with contact information and other information, including sex, age, education or job title/years of experience? • Preparation of training materials and handouts for distribution? • Check and confirmation of the training venue and facilities? • Arrangements for transportation and accommodation for participants? • Organization of food and refreshments for the workshop? • Preparation of daily allowance for participants, if any? • Confirmation of the availability of the interpreter(s), if needed? • Arrangements for the workshop evaluation and reporting?
258 IV. Training aids Training aid 6
Training aid 6. Pre-and post- training questionnaire
Pre- and post-training questionnaire Filling out this form will help us better understand your background and training needs, so the training can be made more beneficial for you. There are no right or wrong answers. 1. Your sex: Male Female
2. You are from: Labour/ Labour Workers’ Employers’ Other personnel inspection organization organization Please specify: department bureau 3. Are you aware of Cambodia’s participation in international conventions related to discrimination in employment? Not at all A little bit Partly Mostly Fully aware
4. Are you familiar with the national laws and regulations prohibiting discrimination in employment? Not at all A little bit Partly Mostly Fully aware
5. Is discrimination in employment a serious issue in Cambodia? Definitely not No Hard to say Yes Definitely
6. What do you think are the most serious grounds of discrimination in employment in Cambodia? (multiple choice) Gender Disability Social origin Age Ethnic minority Health Religion Political Other (please specify) opinion 7. Employers should be free to select one sex over the other for all jobs Strongly Disagree Hard to say Agree Strongly disagree agree
8. Sexual harassment is an important workplace issue which needs to be promptly addressed Strongly Disagree Hard to say Agree Strongly disagree agree
9. People with disabilities are not fit for well-paid jobs Strongly Disagree Hard to say Agree Strongly disagree agree
10. Preferential treatment in job recruitment for ethnic minorities is not justified Strongly Disagree Hard to say Agree Strongly disagree agree
11. Non-local workers in cities should only do jobs that local residents do not want Strongly Disagree Hard to say Agree Strongly disagree agree
259 Equality and non-discrimination at work in Cambodia: Manual Training aid 7
Training aid 7. Training evaluation form
Please answer the questions below.
1. Overall, how do you rate this Workshop? (Check (P) in the box that applies.)
JJ J K L LL
Excellent Good So -so Poor Very poor
2. Which three (3) subjects were the most useful to you? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
3. Which three (3) subjects were the least useful to you? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
4. What additional topics would you like to include in this training? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
5. Do you think the workshop was: ¨ Too long ¨ Too short ¨Right length
6. Which training methods used in the programme would you like more of (e.g., trainers’ presentations, handouts, energizers, games, role-play, case studies, group work)? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
7. Which training methods used in the programme (as mentioned in No. 6 above) would you like less of? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
8. How would you rate the trainers’ overall performance?
JJ J K L LL
Excellent Good So -so Poor Very poor
Remarks: ………………………………………………………………………………………………
260 IV. Training aids Training aid 7
9. How would you rate the overall organization of this workshop (e.g., accommodation, breaks for refreshments, interpretation, administrative and logistical support, etc.)?
JJ J K L LL
Excellent Good So -so Poor Very poor
Remarks: ………………………………………………………………………………………………
10. Do you feel adequately equipped to use the knowledge acquired through the workshop and take further action to combat discrimination and promote equality at work? ¨ Yes ¨ No
11. How would you like to modify/adapt the training for your target groups? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
12. Any other suggestions you may wish to make: ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………
261 Equality and non-discrimination at work in Cambodia: Manual
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272 Annex 1. Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
Annexes
1. Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
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.
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.
273 Equality and non-discrimination at work in Cambodia: Manual
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 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.
(Final Provisions)
274 Annex 2. Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111)
2. Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111)
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 a Recommendation supplementing the Discrimination (Employment and Occupation) Convention, 1958, adopts this twenty-fifth day of June of the year one thousand nine hundred and fifty-eight, the following Recommendation, which may be cited as the Discrimination (Employment and Occupation) Recommendation, 1958:
The Conference recommends that each Member should apply the following provisions:
I. Definitions
1. (1) For the purpose of this Recommendation 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.
(2) Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof is not deemed to be discrimination.
(3) For the purpose of this Recommendation the terms “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
II. Formulation and application of policy
2. Each Member should formulate a national policy for the prevention of discrimination in employment and occupation. This policy should be applied by means of legislative measures, collective agreements between representative employers' and workers' organisations or in any other manner consistent with national conditions and practice, and should have regard to the following principles:
(a) the promotion of equality of opportunity and treatment in employment and occupation is a matter of public concern;
(b) all persons should, without discrimination, enjoy equality of opportunity and treatment in respect of –
275 Equality and non-discrimination at work in Cambodia: Manual
(i) access to vocational guidance and placement services; (ii) access to training and employment of their own choice on the basis of individual suitability for such training or employment; (iii) advancement in accordance with their individual character, experience, ability and diligence; (iv) security of tenure of employment; (v) remuneration for work of equal value; (vi) 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 welfare facilities and benefits provided in connection with employment;
(c) government agencies should apply non-discriminatory employment policies in all their activities;
(d) employers should not practise or countenance discrimination in engaging or training any person for employment, in advancing or retaining such person in employment, or in fixing terms and conditions of employment; nor should any person or organisation obstruct or interfere, either directly or indirectly, with employers in pursuing this principle;
(e) in collective negotiations and industrial relations the parties should respect the principle of equality of opportunity and treatment in employment and occupation, and should ensure that collective agreements contain no provisions of a discriminatory character in respect of access to, training for, advancement in or retention of employment or in respect of the terms and conditions of employment;
(f) employers' and workers' organisations should not practise or countenance discrimination in respect of admission, retention of membership or participation in their affairs.
3. Each Member should –
(a) ensure application of the principles of non-discrimination – (i) in respect of employment under the direct control of a national authority; (ii) in the activities of vocational guidance, vocational training and placement services under the direction of a national authority;
(b) promote their observance, where practicable and necessary, in respect of other employment and other vocational guidance, vocational training and placement services by such methods as – (i) encouraging state, provincial or local government departments or agencies and industries and undertakings operated under public ownership or control to ensure the application of the principles; (ii) making eligibility for contracts involving the expenditure of public funds dependent on observance of the principles; (iii) making eligibility for grants to training establishments and for a licence to operate a private employment agency or a private vocational guidance office dependent on observance of the principles.
4. Appropriate agencies, to be assisted where practicable by advisory committees composed of representatives of employers' and workers' organisations, where such exist, and of other interested bodies, should be established for the purpose of promoting application of the policy in all fields of public and private employment, and in particular –
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(a) to take all practicable measures to foster public understanding and acceptance of the principles of non-discrimination;
(b) to receive, examine and investigate complaints that the policy is not being observed and, if necessary by conciliation, to secure the correction of any practices regarded as in conflict with the policy; and
(c) to consider further any complaints which cannot be effectively settled by conciliation and to render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected.
5. Each Member should repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy.
6. Application of the policy should not adversely affect 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.
7. Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State should not be deemed to be discrimination, provided that the individual concerned has the right to appeal to a competent body established in accordance with national practice.
8. With respect to immigrant workers of foreign nationality and the members of their families, regard should be had to the provisions of the Migration for Employment Convention (Revised), 1949, relating to equality of treatment and the provisions of the Migration for Employment Recommendation (Revised), 1949, relating to the lifting of restrictions on access to employment.
9. There should be continuing co-operation between the competent authorities, representatives of employers and workers and appropriate bodies to consider what further positive measures may be necessary in the light of national conditions to put the principles of non-discrimination into effect.
III. Co-ordination of measures for the prevention of discrimination in all fields
10. The authorities responsible for action against discrimination in employment and occupation should co-operate closely and continuously with the authorities responsible for action against discrimination in other fields in order that measures taken in all fields may be co-ordinated.
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3. Glossary of terms
Affirmative action Special - usually temporary - measures to redress the effects of past or continuing discrimination in order to establish equality of opportunity and treatment between population groups in society.
AIDS Acquired Immune Deficiency Syndrome. AIDS occurs at the late stage of HIV infection when the immune system is unable to function normally.
Arbitration A method of dispute settlement in which an independent third party (usually an administrative tribunal) considers the arguments of both sides and then takes a decision binding on the parties in the dispute.
Bias Opinion or feeling that strongly favours one side in an argument or one item in a group or series; predisposition; prejudice. Bias naturally makes up for gaps in information or education in the human mind. Bias is often embedded in the way society organizes social life. However, once bias starts to inform decisions that directly affect people’s livelihood – such as whether to find or hold employment for which one is qualified – it produces negative effects that reverberate far beyond the life of an individual.
Caste Any of the hereditary Hindu social classes.
Casual worker A worker who works occasionally and intermittently. Such workers are employed for a specific number of hours, days or weeks. They are not normally entitled to the same terms and conditions of employment as ordinary workers (e.g. they would not usually get sick or holiday leave). Whereas temporary workers are employed to replace permanent workers who are, for example, sick or on maternity leave, casual workers have traditionally been employed to cope with a sudden increase in work (e.g. for seasonal reasons) or to undertake a particular (perhaps unforeseen) work task.
CEACR (Committee of Experts on the Application of Conventions and Recommendations) The ILO committee which examines the performance of countries with regard to the application of ILO conventions and recommendations. It convenes yearly and issues both general observations on trends in the application of conventions as well as country-specific “observations” and “direct requests” to governments. See also Direct Request and Observation. The reports and other documents issued by the CEACR are available online at: http://webfusion.ilo.org/public/db/standards/normes/appl/index.cfm?lang=EN (APPLIS database) and http://www.ilo.org/ilolex/english/ (ILOLEX database).
Collective bargaining The process by which an employer or a group of employers and one or more workers’ organizations or representatives voluntarily discuss and negotiate mutually acceptable terms and conditions of employment which are valid for a given period of time.
Compensatory justice, see Affirmative action
278 Annex 3. Glossary of terms
Convention of the ILO International treaty that is legally binding after ratification.
Decent work Productive work performed in conditions of freedom, equity, security and human dignity to which men and women have access on equal terms.
Declaration A formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated. In ILO practice, this kind of act appeared, firstly, with the Declaration of Philadelphia, which was incorporated into the Constitution in 1946. In 1998 the Declaration on Fundamental Principles and Rights at Work expressed the renewed relevance and importance, in the context of globalization, of fundamental rights as enshrined in the Constitution and the Declaration of Philadelphia. The third major statement of principles and policies, the 2008 Declaration on Social Justice for a Fair Globalization, reflects the consensus among ILO constituents for a strong social dimension to globalization in achieving improved and fair outcomes for all.
“De facto” discrimination A legal expression meaning the existence of discrimination in fact (in reality and in practice). For example, the practice of not hiring women to fill jobs considered to be “men’s jobs” when the law requires equal opportunity between men and women in employment.
“De jure” discrimination A legal expression meaning the existence of discrimination in laws, regulations and administrative instructions. For example, a Civil Code provision restricting women’s right to enter into legal contracts or a Labour Code regulation providing that a rural migrant worker should receive less pay than a city resident.
Differential treatment, see Affirmative action
Direct request Comment made by the Committee of Experts on the Application of Conventions and Recommendations to governments, seeking more information or clarification on specific issues regarding the implementation of a ratified convention.
Disability Disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
Discrimination Defined in ILO Convention No. 111 as “any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin which nullifies or impairs equality of opportunity or treatment in employment or occupation”. Discrimination can be direct or indirect.
• Direct discrimination exists when unequal treatment between workers of different race, colour, sex or any other ground covered by the Convention or national legislation stems directly from laws, rules or practices making an explicit difference between
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workers on these grounds. For example, laws which do not allow women to sign contracts; a labour law stipulating that internal rural migrants shall receive less pay in cities than the residents of these cities; or, job advertisements which specify the appearance, age and sex of the candidates.
• Indirect discrimination means rules and practices which appear neutral but are not job related and in practice lead to disadvantages primarily suffered by persons of one sex, race, colour or any other characteristics. For example, setting requirements for managerial or secretarial jobs which are irrelevant to the job such as height or weight levels that typically only people of one sex, race or colour can meet.
Employers’ organization An organization whose membership consists of individual employers, other associations of employers or both, formed primarily to protect and promote the collective interests of members, to present a united front in dealing with organizations and/or representatives of workers, as well as to negotiate for and provide services to members on labour-related matters.
Empowerment Empowerment implies people taking control over their own lives: Setting their own agendas, gaining skills (or having their own skills and knowledge recognized), increasing self- confidence, solving problems, and developing self-reliance. It is both a process and an outcome. For example, women’s empowerment implies an expansion in women's ability to make strategic life choices in a context where this ability was previously denied to them. Women’s empowerment has five components: (1) women’s sense of self-worth; (2) their right to have and to determine choices; (3) their right to have access to opportunities and resources; (4) their right to have the power to control their own lives, both within and outside the home; (5) their ability to influence the direction of social change nationally and internationally.
Equality Equality and non-discrimination refer to the enjoyment of equal rights, opportunities and treatment within all spheres of life and work for all people regardless of characteristics such as sex, race, ethnicity, religion, disability or health status. Equality implies that all people are free to develop their personal abilities and make choices without the limitations set by stereotypes, assumptions and prejudices about their sex, colour, race, ethnicity, religion, social or national origin, disability or health condition. It does not mean that all people have the same abilities or have to be treated in the same way. It means that the different behaviour, aspirations and needs of people are equally considered, valued and favoured, regardless of characteristics such as sex, race, ethnicity and health or disability status.
Equality at work A fundamental value and principle enabling workers to claim a fair share of the wealth which they help generate through employment or occupation.
Equal Opportunity Policy (EOP) or Equal Employment Opportunity Policy (EEOP) Commitment to engage in (employment) procedures and practices which do not discriminate and which provide equality between workers with different characteristics, such as sex or ethnicity.
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Equal opportunity in the world of work The principle of equal opportunity aims to ensure that people can develop their economic potential to the fullest, and can allocate their time and energy where reward is the highest. Equal opportunity between men and women at work refers to equal chances to apply for a particular job to be employed, to attend educational or training courses, to be eligible to attain certain qualifications and to be considered as a worker or for a promotion in all occupations or positions, including those dominated by one sex or the other.
Equal treatment in the world of work The principle of equal treatment intends to ensure that people’s work performance is rewarded according to their productivity and merit, taking into account the objective characteristics of a job, such as skills and knowledge, and without interference of considerations unrelated to merit. It refers, for example, to equal entitlements in pay, working conditions, security of employment, reconciliation between work and family life, and social protection.
Equal remuneration, see also Remuneration
• Equal pay for equal work. The same pay for performing the same, identical or similar work. Equal pay for equal work is more limited in scope than “equal pay for work of equal value”.
• Equal pay for work of equal value. The principle of equal pay for work of equal value applies when men and women perform work that is different in content but equal in terms of skill and qualifications, efforts, duties and responsibilities, and working conditions.
Equity Is about achieving equality of outcomes and results, that is, all persons have an equal chance not only at the starting point but also when reaching the finishing line. Equity is about equal, fair and just chances, opportunities and treatment that takes into account and addresses the different needs and interests of all women and men, cultural or other barriers and (past) discrimination of specific groups.
Ethnicity A sizable group of people that has a common cultural and livelihood tradition.
Ethnic minorities Groups of persons who have the right, in community with the other members of their group, to enjoy their own culture and livelihood, to profess and practice their own religion, and/or to use their own language.
Female-to-male earnings or wage ratio The ratio of women’s to men’s earnings or wages. This is calculated by dividing women’s earnings or wages by men’s earnings or wages, and is often expressed as a percentage (the ratio multiplied by 100). For example, if women’s average monthly wage in a country is three units, and men’s is five units, the female-to-male wage ratio is three divided by five (3:5), which amounts to 0.6, or 60 per cent when expressed as a percentage. In this example, the gender pay gap (see below) would be 100 minus 60 is 40 per cent.
Femininity and masculinity Ideas and expectations about the characteristics, attitudes and likely behaviour of women and men.
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Gender Social differences and relations between men and women that are learned, vary widely among societies and cultures, and change over time. The term “gender” does not replace the term “sex,” which refers to the biological differences between men and women, for example, statistical data are broken down by sex. The term “gender” is used to analyze the roles, responsibilities, constraints, opportunities and needs of women and men in all areas and in any given social context.
Gender discrimination, see Sex discrimination
Gender analysis Research examining similarities, differences and relations between women and men, girls and boys in all spheres of life and work. It looks at their specific activities, the division of labour, access to and control over resources, as well as their needs, constraints and opportunities as well as access to development benefits and decision-making at the micro, meso and/or macro levels or the larger natural, social, economic and political environment with a view to identify possible gender gaps and means of rectifying these.
Gender-blind, see also Gender neutral Describes measures and actions, such as research, analysis, policies, advocacy and training materials, programme and project design and implementation that do not recognize and ignore possible differences between the position, needs, constraints, opportunities and interests of women, men, girls and boys.
Gender equality or equality between men and women Enjoyment of equal rights, opportunities and treatment by men and women of all ages in all spheres of life and work. It implies that all human beings are free to develop their personal abilities and make choices without the limitations set by stereotypes and prejudices about gender roles or the characteristics of men and women. It means that the different behaviour, aspirations and needs of women and men are considered, valued and favoured equally. It does not mean that women and men are the same of have to become the same, but that their rights, responsibilities, social status and access to resources do not depend on whether they are born male or female.
Gender gap or gender imbalance Differences in any area between women and men (or girls and boys) in terms of their levels of participation, access to resources, rights, power and influence, remuneration and benefits.
Gender justice The ending of, and if necessary the provision of redress for, inequalities between women and men that result in women’s subordination to men. The gender justice approach pursues gender equality with an emphasis on transforming unequal power relations between the sexes. Priorities include advancing women’s rights and access to resources on an equal footing with men; creating women’s access and influence in policy and decision-making institutions and making social, economic and political institutions responsive and accountable to women. The term “gender justice” is increasingly being used because of the growing concern and realization that terms like “gender equality” and “gender mainstreaming” have failed to communicate, or provide redress for, the ongoing gender-based injustices from which women suffer.
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Gender mainstreaming Main strategy to accelerate progress towards equality between women and men. A two- pronged approach is applied: firstly, by explicitly and systematically addressing the specific and often different needs and concerns of both women and men in all policies, strategies and programmes; secondly, by targeted interventions when analysis shows that one sex – usually women – is socially, politically and/or economically disadvantaged. Empowerment initiatives, such as affirmative action measures, are essential to achieve equality and are an integral component of the gender mainstreaming strategy.
Gender-neutral, see also Gender blind Describes measures and actions, such as research, analysis, policies, advocacy and training materials, programme and project design and implementation that are not affected by and do not affect the different situations, roles, needs, and interests of women, men, girls and boys. In reality, very few policies, measures and actions are gender-neutral, because they have different effects on women and men.
Gender pay gap or gender wage gap The percentage difference between average female and average male pay or wages. For instance, if women earn 70 per cent of what men earn, the gender pay gap is 30 per cent. See also Female-to-male earnings or wage ratio.
Glass ceiling Invisible artificial barriers, created by attitudinal and organizational prejudices that block women’s access to decision-making and managerial positions.
Hepatitis B virus (HBV) The HBV is a virus which infects the liver and causes an inflammation called hepatitis. It is transmitted through contact with the blood or other body fluids of an infected person. It is not transmitted through the digestive tract and not through casual contact in the workplace. It also does not spread through contaminated food or water. About 90 per cent of healthy adults who are infected with HBV will recover and be completely rid of the virus within six months.
Hepatitis B Liver disease that may result from infection with HBV and ranges in severity from a mild illness lasting a few weeks to a serious, lifelong illness. Symptoms include tiredness, yellow eyes, pain around the liver area, dark urine and fever. Hepatitis B can be either acute or chronic. The likelihood of acute or chronic infection depends upon the age at which someone becomes infected. The younger a person is when infected with Hepatitis B virus, the greater his or her chance of developing chronic Hepatitis B. Approximately 90 per cent of infected infants will develop chronic infection. The risk goes down as a child gets older.
Harassment Unwelcome comments or conduct related to a person’s sex, race, ethnicity, political opinion, religious belief, or perceived social status, occupational or educational background or family descent, that violate a person’s dignity and/or create an intimidating, hostile, degrading or offensive working environment.
HIV Human Immunodeficiency Virus, a virus that weakens the body’s immune system and, if not properly treated, ultimately causes AIDS in most cases.
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Human rights Basic and absolute rights agreed and defined at the international level that each person has because he or she is a human being.
Human rights-based approach to disability This approach views disability as the result of interaction between individuals with an impairment and a non-inclusive society. Disability results from social, cultural, economic and physical environmental barriers, rather than the person’s actual impairment. Most contemporary international policy about disability reflects this social model of disability.
Indigenous peoples Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
Indirect discrimination, see Discrimination
International Labour Organization (ILO) The ILO was founded in 1919 to advance social justice and better living conditions throughout the world. In 1946 it became the first specialized agency associated with the United Nations. It is a tripartite organization: Workers’ and employers’ representatives take part in its work with equal status to that of governments. The number of ILO member States is 183 as of 18 February 2010. The International Labour Office serves as the secretariat to the International Labour Organization.
International labour standards International agreements such as conventions and recommendations adopted by the International Labour Conference which lay down the minimum provisions or guidelines covering a broad range of matters in the field of employment and labour.
Job evaluation, free from gender bias A process which allows different jobs to be compared within an organization, company or sector in order to determine appropriate wage rates. This is done by breaking down the duties and skills of jobs into different factors of value (usually skill, effort, responsibility, and working conditions). Job evaluation methods which are free from gender bias assess jobs objectively through criteria which are equally applicable to both female- and male-dominated jobs and ensure that the skills required for jobs typically performed by women, such as manual dexterity or human relations skills, are not undervalued.
Mediation Assistance provided to disputing parties by an independent third party (the mediator). In mediation the third party is more actively involved than in conciliation and attempts to suggest proposals and methods for actual resolution of the problem so that a solution acceptable to both parties can be found.
Medical approach to disability The medical model of disability views disability as the result of an impairment that is intrinsic to the individual. The medical model defines the problems associated with disability as inherent to the person who has the impairment. It specifies lists of conditions and a
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classification of disability based on medical understandings of the body and mind and prioritizes curing or controlling these conditions within the individual.
Member States (of the ILO) Countries that are members of the ILO and are bound by the terms of the ILO Constitution.
Migrant worker Person who left his/her place of origin and moved to another destination to work. “International” or “external” or “foreign” migrant workers refer to workers who left their country of origin, crossed a national border and work in another country. “Internal” or “domestic” migrant workers are workers who moved from their place of origin to another place within their country to work.
National extraction or origin Discrimination in employment and occupation based on national extraction covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin. The ground of national extraction includes national ethnic or linguistic minority groups. It often concerns a distinction made between citizens of the same country on the basis of the foreign birth or origins of some of them.
Observation Comment made by the Committee of Experts on the Application of Conventions and Recommendations. Individual observations for specific countries are generally used for serious or long-standing cases of a government’s failure to fulfill its obligations under a Convention it has ratified. General observations on specific conventions are issued whenever there is a need for additional guidance.
Occupational segregation by sex Refers to a situation in which women and men are concentrated in different types of jobs and at different levels of activity and employment. Segregation can be either horizontal (when a group is confined to a different, narrower range of occupations than another group) or vertical (when one group works in different, usually lower job grades as compared to another group).
Placement Refers to any operations for the purpose of ensuring or facilitating the employment of persons. Such services are commonly offered by both public and private employment agencies.
Parental leave Is leave granted to either parent in order to care for a child. It generally follows a period of maternity leave, to which the mother is entitled. In some countries, parental leave is granted in the event of adoption as well. Parental leave is different from “paternity leave,” which is leave for the father at the time of the birth (or adoption) of his (a) child.
Pay equity, see also Equal pay (remuneration) for work of equal value The same as equal remuneration for work of equal value. The term pay equity underlines that something extra needs to be done to redress the gap and enable women to earn the same as men for work of equal value, while equal remuneration has a stronger connotation with the fundamental and inalienable right of women to earn the same as men for work of equal value.
Positive action, discrimination, or measures also known as Preferential policies, or treatment, see Affirmative action
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Prejudice, see Bias
Prima facie Legal term referring to the reversal of the burden of proof. In several jurisdictions, once the complainant or alleged victim has provided evidence of differential treatment, the employer has the burden of proving that his or her actions are not discriminatory but based on objective reasons.
Protective measures Measures aiming to protect specific groups such as children or women. In the case of women, protective measures may be broadly categorized as those aimed at protecting women’s reproductive and maternal capacity and those aimed at protecting women because of gender perceptions and stereotypes about their capacities and appropriate roles in society.
• The international consensus is that measures which explicitly or implicitly aim at protecting the reproductive capacity of women, such as maternity protection, are vital for the achievement of true equality.
• Protective measures may also include laws which perpetuate a bias against women as the “weaker sex”, and denies them employment opportunities. UN bodies request governments to review such measures regularly to decide whether this protective laws are still necessary.
Proxy Substitute. In case information on a certain indicator is not available, another variable is selected as alternative measurement. For example, in pay equity studies, age is often a proxy indicator for years of work experience.
Public interest litigation A case brought before the courts that results in a judgment which may serve the public interest.
Race Any of several large subdivisions of humankind sharing physical characteristics, e.g. colour of skin, colour and type of hair, shape of eyes and nose.
Racial harassment, see Harassment
Ratification An act by which a State formally agrees to be legally bound by a Convention’s provisions. It usually requires the approval of the State’s legislative body (or bodies, in the case of federal states), which is in many cases the parliament.
Reasonable accommodation Necessary and appropriate modification and adjustments to a job or to the workplace not imposing a disproportionate or undue burden, where needed in a particular case, to ensure that people with disabilities, health conditions or specific religious requirements have the same fundamental freedoms as other persons and have access to and can participate and advance in employment and occupation.
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Recommendation of the ILO Guidelines that provide authoritative guidance but are not legally binding and can not be ratified. Recommendations usually supplement conventions and provide more specific guidelines as to how the conventions they accompany may be effectively applied. Some ILO recommendations are not linked to any convention.
Recruitment Refers to the engagement of a person by or on behalf of an employer or making a commitment to a person to provide him or her with employment. This includes any related arrangements such as seeking for and selecting an employee (e.g. job advertisements, job interviews and entrance exams or tests).
Remuneration Wages or earnings payable by an employer to an employed person according to a written or unwritten contract of employment for work or services performed or to be performed. Includes not only the basic wages but any additional benefits or emoluments arising out of the worker’s employment paid by the employer to the worker, directly or indirectly, and in cash or in kind.
Reversal of the burden of proof, see Prima facie
Reverse discrimination, see Affirmative action
Sex discrimination, or Gender discrimination Any distinction, exclusion or preference based on sex or gender values, norms or stereotypes, which has the effect of nullifying or impairing equality of opportunity and treatment in life and at work.
Sexual harassment, see Harassment
Sexual blackmail Refers to conduct which makes a job benefit – such as a pay rise, a promotion, or continued employment – conditional on sexual favours, known as “quid pro quo” in legal circles.
Social model of disability, see Human rights-based approach to disability
Social origin An individual’s belonging to a widely recognized “class” in society. This social stratification may take the form of socio-economic origin, a socio-occupational category, a caste, social condition or status, criminal conviction and also household registration if privileges are attached to this registration.
Special measures of protection or assistance Refer to measures which are designed to meet the particular needs of a person or groups of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, require special protection or assistance. These measures are not considered to be discriminatory. They are legitimate, recognized exceptions to the principle of equality of opportunities and treatment as this type of “positive discrimination” is vital to achieve equality in practice. Two main types can be distinguished: protective measures and affirmative action or positive measures.
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Standard An international agreement such as a convention or a treaty which lays down the minimum provisions or guidelines on a specific subject.
Stereotype Fixed, standardized and simplified conception or image about specific social groups or types of individuals based on some prior assumptions. For instance, gender stereotypes refer to the ideas that people have on what boys and men, girls and women are capable of or should be doing, for example, women are better housekeepers and men are better leaders. While stereotypes may sometimes be true, they are often proven to be false.
Trade union An association of workers organized to protect and promote their common interests.
Tripartite/tripartism Defining characteristic of the ILO structure, referring to three parties, namely governments, representatives of workers’ and employers’ organizations. The three parties are represented on the ILO’s main bodies and participate in the decision-making, including the formulation of international labour standards and supervision of their implementation.
Temporary special measures, see Affirmative action
Work of equal value Refers to work which may be different in terms of content, but is valued as equal in terms of criteria such as skill, effort, responsibility and working conditions. Job evaluation (see above) is commonly used for determining equal value.
Tripartite consultation The ILO is based on the principle of tripartism – dialogue and cooperation between governments, employers, and workers – in the formulation of standards and policies dealing with decent work, that is employment, labour, social protection and social dialogue matters. Through regular tripartite consultations, governments can ensure that ILO standards are formulated, applied and supervised with the participation of employers and workers. ILO standards on tripartite consultation set forth the framework for effective national tripartite consultations. Such consultations can ensure greater cooperation among the social partners and stronger awareness and participation in matters relating to international labour standards, and can lead to better governance and a greater culture of social dialogue on wider social and economic issues.
Xenophobia Unreasonable fear, distrust, or hatred of strangers, foreigners or anything perceived as foreign or different.
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Equality and non-discrimination at work in Cambodia: Manual
The principles of equality and non-discrimination are embedded in universal notions of decency, dignity and respect. They are fundamental for promoting social justice and economic development both within and across countries. This manual is part of a series of training packages on equality and non-discrimination at work in Asian countries, issued by the ILO to support the application of the international labour standards on equality and non- discrimination in employment and occupation, equal remuneration for men and women, maternity protection and equal sharing of family responsibilities. The manual for Cambodia contains the concepts and approaches, training exercises and practical tools and checklists to eliminate discrimination and promote equality for women and men at work for those working in the fields of development, law, employment and social policy, equality and rights, and for employers and workers and their organizations.
ILO Joint Projects’ Office Phnom Penh Center, Building F, 2nd floor, Corner Sihanouk (274) and Sothearos (3) Blvd, Chamcamorn, Phnom Penh, Cambodia P.O. Box 2642 Tel: (855 23) 224 625 Fax: (855 23) 221 536
ILO Country Office for Thailand, Cambodia and Lao PDR Decent Work Technical Support Team for East and South-East Asia and the Pacific Regional Office for Asia and the Pacific United Nations Building, Rajdamnern Nok Avenue, P.O. Box 2-349, Bangkok 10200, Thailand Tel: (66 2) 288 1234 Fax: (66 2) 288 3062 Email: [email protected]
www.ilo.org/asia ISBN: 9789221268277
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