January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

(ANDORRA, ARMENIA, AUSTRIA, AZERBAIJAN, BELGIUM, BOSNIA and HERZEGOVINA, BULGARIA, ESTONIA, FINLAND, FRANCE, GEORGIA, HUNGARY, IRELAND, ITALY, LATVIA, LITHUANIA, MALTA, REPUBLIC OF MOLDOVA,MONTENEGRO, THE NETHERLANDS, NORWAY, PORTUGAL, ROMANIA, RUSSIAN FEDERATION, SERBIA, SLOVAK REPUBLIC, “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”, TURKEY, UKRAINE)

Articles 1, 9, 10, 15, 18, 20, 24 and 25 of the Charter

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

General Introduction

This text may be subject to editorial revision.

GENERAL INTRODUCTION

1. The European Committee of Social Rights, established by Article 25 of the European Social Charter, composed of:

Mr Giuseppe PALMISANO (Italian)

President

Professor of International Law and EU Law

Director of the Institute for International Legal Studies

National Research Council of Italy, Rome (Italy)

Ms Monika SCHLACHTER (German)

Vice-President

Professor of Civil, Labour and International Law

Director of Legal Studies Institute for Labour Law and Industrial Relations in the European Community

University of Trier (Germany)

Mr Petros STANGOS (Greek)

Vice-President Professor of European Union law,

Holder of the Jean Monnet Chair "European human rights law"

School of Law, Department of International studies

Aristotle University, Thessaloniki (Greece)

Mr Lauri LEPPIK (Estonian)

General Rapporteur

Senior Researcher

School of Governance, Law and Society

Tallinn University (Estonia)

Mr Colm O’CINNEIDE (Irish)

Reader in Law

Faculty of Laws University College, London (United Kingdom)

Ms Birgitta NYSTRÖM (Swedish)

Professor of Private Law, especially Labour Law

University of Lund (Sweden)

Ms Elena MACHULSKAYA (Russian)

Professor

Department of Labour and Social Law

Lomonosov State University, Moscow (Russian Federation)

Ms Karin LUKAS (Austrian)

Senior Legal Researcher and Head of Team

Ludwig Boltzmann Institute of Human Rights, Vienna (Austria)

Ms Eliane CHEMLA (French)

Conseillère d’Etat

Conseil d’Etat, Paris (France)

Mr Jozsef HAJDU (Hungarian)

Dean for International Affairs and Science

University of Szeged (Hungary)

Mr Marcin WUJCZYK (Polish)

Lecturer in Labour Law and Social Policy

Jagiellonian University, Cracow (Poland)

Ms Krassimira SREDKOVA (Bulgarian)

Professor of Labour Law and Social Security

University of Sofia (Bulgaria)

Mr Raul CANOSA USERA (Spanish)

Professor of Constitutional Law

University Complutense, Madrid (Spain)

Ms Marit FROGNER (Norwegian)

Judge

Labour Court of Norway, Oslo (Norway)

Mr François VANDAMME (Belgian)

Former Director International Affairs, Federal Public Service Employment, Labour and Social Dialogue, Brussels (Belgium)

Former visiting professor, College of Europe (Bruges, 1998-2012, "Enjeux sociaux et gouvernance de l’Europe")

Former invited "Maître de conférences" (2008-2014) in Labour Law, Catholique University of Louvain, Louvain-la-Neuve, (Belgium)

assisted by Mr Régis BRILLAT, Executive Secretary,

between January 2016 and December 2016 examined the reports of the States Parties on the application of the Revised European Social Charter.

2. The role of the European Committee of Social Rights is to rule on the conformity of the situations in States with the European Social Charter (revised), the 1988 Additional Protocol and the 1961 European Social Charter.

3. Following the changes to the reporting system adopted by the Committee of Ministers at the 1996th meeting of the Ministers’ Deputies on 2-3 April 2014 the system henceforth comprises three types of reports. Firstly, the ordinary reports on a thematic group of Charter provisions, secondly simplified reports every two years on follow-up to collective complaints for States bound by the collective complaints procedure and, thirdly, reports on conclusions of non-conformity for lack of information adopted by the Committee the preceding year.

4. Thus, the conclusions adopted by the Committee in December 2016 concern firstly the accepted provisions of the following articles of the Revised European Social Charter (“the Charter”) belonging to the thematic group "Employment, training and equal opportunities" on which the States Parties had been invited to report by 31 October 2015:

the right to work (Article1),

the right to vocational guidance (Article 9),

the right to vocational training (Article 10),

the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),

the right to engage in a gainful occupation in the territory of other States Parties (Article 18),

the right of men and women to equal opportunities (Article 20),

the right to protection in cases of termination of employment (Article 24),

the right to workers to the protection of claims in the event of insolvency of the employer (Article 25).

5. The following States Parties submitted a report: Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Finland, France, Georgia, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Republic of Moldova, Montenegro, Portugal, Romania, the Russian Federation, Serbia, the Slovak Republic, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine.

6. Albania did not submit a report and therefore the Committee was unable to reach any conclusions on its conformity with the relevant provisions for this cycle. The Committee notes the failure of Albania to respect its obligation, under the Charter, to report on the implementation of this treaty. As this is the third successive year that Albania does not submit a report, the Committee invites the Committee of Ministers to take appropriate measures to ensure that Albania fulfils its reporting obligation.

7. As noted above, States which have accepted the collective complaints procedure shall henceforth submit a simplified report every two years. In order to avoid excessive fluctuations in the workload of the Committee from year to year, the 15 States which have accepted the complaints procedure were divided into two groups as follows:

• Group A, made up of eight States: France, Greece[1], Portugal, Italy, Belgium, Bulgaria, Ireland, Finland.

• Group B, made up of seven States: the Netherlands, Sweden, Croatia, Norway, Slovenia, Cyprus, the Czech Republic[2]

On this basis, the States belonging to Group B were invited to submit reports on follow-up to collective complaints by 31 October 2015. The conclusions adopted by the Committee in this respect thus concern the following States Parties: Cyprus, Czech Republic, Norway, Slovenia, Sweden, the Netherlands[3].

8. Finally, certain States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014. The conclusions in this respect may concern both States reporting on the thematic group of provisions and those reporting on follow-up to complaints.

The States concerned in 2016 are: Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Estonia, Finland, Georgia, Hungary, Ireland, Italy, Lithuania, Malta, the Republic of Moldova, the Netherlands, Norway, Portugal, “the Former Yugoslav republic of Macedonia”, Turkey and Ukraine.

9. In addition to the state reports, the Committee had at its disposal comments on the reports submitted by different trade unions and non-governmental organisations (see introduction to the individual country chapters). The Committee wishes to acknowledge the importance of these various comments, which were often crucial in gaining a proper understanding of the national situations concerned.

10. The Committee’s conclusions as outlined above are published in chapters by State. They are available on the website of the European Social Charter and in the case law database that is also available on this site. A summary table of the Committee’s Conclusions 2016 as well as the state of signature and ratification of the Charter and the 1961 Charter appear below. In addition, each country chapter highlights selected positive developments concerning the implementation of the Charter at national level identified by the Committee in its conclusions.

Statement on information in national reports and information provided to the Governmental Committee

11. The Committee draws the attention of the States Parties to the obligation to systematically include replies to information requests by the Committee in the national reports. Moreover, the Committee invites the States Parties to always include in the report any relevant information previously provided to the Governmental Committee, whether in writing or orally, or at least to refer to such information, and of course to indicate any developments or changes that may have intervened in the period since the information was provided to the Governmental Committee.

Next reports

12. The next reports on the accepted provisions, which were due before 31 October 2016, concern the following Articles belonging to the thematic group "Health, social security and social protection": 3, 11, 12, 13, 14, 23 and 30. States having accepted the collective complaints procedure and belonging to Group B[4] were due to submit a simplified report on follow-up to complaints also before 31 October 2016. Finally, by the same date States concerned[5] are to report on any conclusions of non-conformity for lack of information adopted in Conclusions 2015.

Election of members to the Committee

The composition of the Committee is governed by Article 25 pursuant to which its 15 members are appointed by the Committee of Ministers for mandates of six years, renewable once.

It is recalled that pursuant to Article 3 of the Turin Protocol members shall be elected by the Parliamentary Assembly. However, this provision alone is still not being applied in practice (pending the formal entry into force of the Protocol).

Members shall be “independent experts of the highest integrity and of recognised competence in international social questions”. Election takes place every second year with a third of the seats (5) being up for election.

At the 1272th meeting of the Ministers’ Deputies on 30 November 2016, the Committee of Ministers held the election to fill the five seats falling vacant on 31 December 2016. Ms Karin LUKAS (Austrian) and Mr Giuseppe PALMISANO (Italian) were elected for a second term, and Ms Aoife NOLAN (Irish), Ms Kristine DUPATE (Latvian) and Ms Barbara KRESAL (Slovenian) were elected as members for a first term in office. The term of office of these members begins on 1 January 2017 and ends on 31 December 2022.

The Committee wishes to express its appreciation and gratitude to the three outgoing members, Ms Elena MACHULSKAYA (Russian), Mr Colm O’CINNEIDE (Irish) and Mr Lauri LEPPIK (Estonian) for their contribution to the Committee’s work and for their tireless efforts to promote social rights.

On 8 December 2016 a workshop in honour of the three outgoing members was organized in Strasbourg on the topic of “The European Social Charter and the European Pillar of Social Rights”.

Declaration on protecting the independent status of the members of the European Committee of Social Rights

The European Committee of Social Rights was set up under the European Social Charter as a body of independent experts whose main task – similar to that of the European Court of Human Rights in relation to the Convention for the Protection of Human Rights and Fundamental Freedoms – is to interpret the international legal commitments entered into by the States Parties.

This arrangement is highlighted by the Committee of Ministers when it elects the members of the committee, who must meet the required conditions of competence, independence, impartiality and availability and make solemn declarations to that effect upon taking up their duties. FRANCE

While the consolidation of the reporting system and the development of the collective complaints procedure have enhanced the Committee’s judicial method of operation, at the same time and paradoxically, the vital characteristic of independence is sometimes undermined because of more or less explicit attempts by certain political, institutional or administrative players both inside and outside the Council of Europe to interfere with or exert undue pressure on the Committee and its secretariat.

In this context, given that the European Committee of Social Rights plays a vital part in ensuring compliance with the Charter through its authoritative interpretations, any interference with or undue pressure exerted on the Committee or the Secretariat also undermines the realisation of human rights, democracy and the rule of law, which are the pillars of the Council of Europe.

For these reasons, the Committee reasserts the independent status of its members and of its secretariat when assisting the Committee in accordance with Rule 13 of the Committee’s Rules and asks all institutions and bodies, both inside and outside the Council of Europe, to make sure that this independence is preserved. Accordingly, whenever that independence is interfered with, the Committee will issue this declaration to the parties concerned.

CONCLUSIONS 2016

Article	ANDORRA	ARMENIA	AUSTRIA	AZERBAIJAN	BELGIUM	BOSNIA AND HERZEGOVINA	BULGARIA	ESTONIA	FINLAND	France	GEORGIA	HUNGARY	IRELAND	ITALY	LATVIA	LITHUANIA	MALTA	REP. OF MOLDOVA	MONTENEGRO	THE NETHERLANDS	NORWAY	Portugal	ROMANIA	RUSSIAN FEDERATION	SERBIA	SLOVAK REPUBLIC	"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"	TURKEY	UKRAINE
Article 1.1	+	-	+	0	+	-	-	+	+	0	-	+	+	-	+	+	+	-	-			-	+	+	-	0	-	+	-
Article 1.2	+	-	+	-	-	-	-	+	+	-	-	+	-	0	-	+	+	-	-			-	0	-	0	+	-	-	-
Article 1.3	+	-	+	-	+	+	+	+	0	0	-	0	+	0	+	+	0	+	+			+	-	+	+	-	0	+	-
Article 1.4	0	+	+	-	+	-	0	+	0	-	-	0	0	0	0	0	-	-	-			+	-	-	-	-	-	-	-
Article 2.1																	-
Article 2.2											-						-
Article 2.3												+
Article 2.4														-
Article 2.5		+									-
Article 2.6		+																										+
Article 2.7											-																		-
Article 4.1			-		+															0
Article 4.2													-			-	-
Article 5		-		-				+			-						+	0											-
Article 6.1				0			0																				+
Article 6.2											-					0		0
Article 6.3		+		+													-
Article 6.4		-									-			0				-				+
Article 9	+		+	-	+	-		+	+	+		0	+	+	+	0	+	-	-			+	+	-	-	-		+	-
Article 10.1	+		+		+			+	+	+		+	0	+	+	+	+		-			+		0	+	-		+	-
Article 10.2	+		+		+			+	+	+	-	+	+	+	+	0	+		-			+		+	+	-		+	-
Article 10.3	0		+		+			+	0	0		+	0	0	0	0	-		-			+		+	-	0		0	0
Article 10.4	0		+		0			+	+	+	-	+	+	0	0	+	0		-			-		+	-	-		-	-
Article 10.5	-		-		-				-	-		-	0	+	0	0	0					-		+		+		0	-
Article 15.1	+		-		-			+	+	-		-	0	+	0	+	+	+	-			+	-	0	-	+	-	-	-
Article 15.2	+	-			+			+	+	-		-	+	+	0	+	+	-	-			+	-	-	-	0	0	-	-
Article 15.3	-	-	0		-			-	+	-	0	-	-	+	0	+	+		-			+			-			-	-
Article 18.1		+	+		+			+	+	+	+		+	-	+	+						-			+	+		+	+
Article 18.2		0	+		+			+	+	+	+		-	+								+			-	-		+	-
Article 18.3		+			-				+	+	+		+	-				-				0	+		+			-	-
Article 18.4	+	+	+		+		+	+	+	+	+		+	+	0	+	+	+				+	+	-	0	+		+	0
Article 20	+	-	0	-	+	-	0	-	+	+	-	+	+	+	0	+	-	-	-			0	+	-	-	+	0	-	-
Article 21														+
Article 22		0		-			-							+							+							-
Article 24		-		+			-	+	-	0			-	-	+	+	-	+	-			+	+	+	+	-	0	0	+
Article 25			+		-		+	+	+	+			+		+	+	+					-	0		+	+		-
Article 26.1																												+	-
Article 26.2				-							-					-		+		-								-	-
Article 28		-		-					-									-			-								-

MEMBER STATES OF THE COUNCIL OF EUROPE

AND THE EUROPEAN SOCIAL CHARTER

Situation on 31 December 2016

The dates in bold on a grey background correspond to the dates of signature or ratification of the 1961 Charter; the other dates correspond to the signature or ratification of the 1996 revised Charter.

*  States whose ratification is necessary for the entry into force of the 1991 Amending Protocol. In practice, in accordance with a decision taken by the Committee of Ministers, this Protocol is already applied.

X State having recognised the right of national NGOs to lodge collective complaints against it.

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

ANDORRA

This text may be subject to editorial revision.

The role of the European Committee of Social Rights (the Committee) is to rule on the conformity of the situation in States Parties with the Revised European Social Charter (the Charter). The Committee adopts conclusions through the framework of the reporting procedure and decisions under the collective complaints procedure.

The following chapter concerns Andorra, which ratified the Charter on 12 December 2014. The deadline for submitting the 9th report was 31 October 2015 and Andorra submitted it on 23 October 2015.

In accordance with the reporting system adopted by the Committee of Ministers at the 1196th meeting of the Ministers’ Deputies on 2-3 April 2014, the report concerns the following provisions of the thematic group "Employment, training and equal opportunities":

·         the right to work (Article1),

·         the right to vocational guidance (Article 9),

·         the right to vocational training (Article 10),

·         the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),

·         the right to engage in a gainful occupation in the territory of other States Parties (Article 18),

·         the right of men and women to equal opportunities (Article 20),

·         the right to protection in cases of termination of employment (Article 24),

·         the right to workers to the protection of claims in the event of insolvency of the employer (Article 25).

Andorra has accepted all provisions from the above-mentioned group except Articles 18§§1 to 3, 24 and 25.

The reference period was 1 January 2011 to 31 December 2014.

The conclusions relating to Andorra concern 15 situations and are as follows:

– 10 conclusions of conformity: Articles 1§1, 1§2, 1§3, 9, 10§1, 10§2, 15§1, 15§2, 18§4 and 20;

– 2 conclusions of non-conformity: Articles 10§5 and 15§3.

In respect of the other 3 situations related to Articles 1§4, 10§3 and 10§4 the Committee needs further information in order to examine the situation. The Committee considers that the absence of the information requested amounts to a breach of the reporting obligation entered into by Andorra under the Charter. The Committee requests the Government to remedy this situation by providing the information in the next report.

During the current examination, the Committee noted the following positive developments:

Article 20

·         In its decision of 27 March 2014, the Civil Division of the Supreme Court of Justice held that it was for the company to prove that the dismissal of one of its employers was not an act of discrimination.

The next report will deal with the following provisions of the thematic group "Health, social security and social protection":

·         the right to safe and healthy working conditions (Article 3),

·         the right to protection of health (Article 11),

·         the right to social security (Article 12),

·         the right to social and medical assistance (Article 13),

·         the right to benefit from social welfare services (Article 14),

·         the right of elderly persons to social protection (Article 23),

·         the right to protection against poverty and social exclusion (Article 30).

The report should also contain information requested by the Committee in Conclusions 2015 in respect of its findings of non-conformity due to a repeated lack of information:

·         the right of migrant workers and their families to protection and assistance – Assistance and information on migration (Article 19§1),

·         the right to housing – Reduction of homelessness (Article 31.2)

The deadline for submitting that report was 31 October 2016.

Conclusions and reports are available at www.coe.int/socialcharter.

Article 1 - Right to work

Paragraph 1 - Policy of full employment

The Committee takes note of the information contained in the report submitted by Andorra.

Employment situation

The Committee notes from other sources that Andorra was during the reference period still hit by the economic crisis. In 2011, Andorra witnessed a GDP contraction of an estimated 0.4%, in 2012 a GDP contraction of an estimated 1.6%.

The unemployment rate rose from 3.57% in 2011 to 4.86% in 2014. However, it is still well below the EU-28 average of 10.2%.

The Committee notes that Andorra replied to the question raised at the previous Conclusions namely to provide figures on youth employment and long-term unemployed persons. According to the report, youth unemployment (20 – 29 years old) decreased from 19.5% in 2011 to 17.3% in 2014. The percentage of the long-term unemployed persons rose considerably from 5.8% in 2011 to 16.5% in 2014.

The employment rate stayed at a comparably high level of 84.2% in 2014.

The Committee notes that despite the contraction of the economy during the reference period and despite the rise in the number of long-term unemployed, the overall situation of the Labour market is still characterised by a relatively low unemployment rate.

Employment policy

According to the report, Andorra initiated during the reference period in the public and private sector a number of measures aimed at reversing the negative trend in the number of unemployed people. The measures taken in the private sector helped to create 45 jobs in 2013 and 48 jobs in 2014. In the public sector, the programme to carry out work of general interest continued. It created 206 jobs in 2012, 301 in 2013 and 358 in 2014.

The Committee takes note of several policy measures intended to combat the unemployment rate of both the young persons and of the long-term unemployed.

The Committee repeats its request that information is to be provided both on the expenditure on active labour market policies (as a share of GDP)and on the participation in active labour market measures as a percentage of the unemployed (‘activation rate’).

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 1§1 of the Charter.

Article 1 - Right to work

Paragraph 2 - Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects)

The Committee takes note of the information contained in the report submitted by Andorra.

1. Prohibition of discrimination in employment

The Committee noted previously that discrimination on the ground of age is covered by the expression “any other consideration of a personal or social nature” in Article 4 of the Labour Relations Code (Law No. 35/2008) (Conclusions 2012). The report states that Article 89 of the Labour Relations Code does not regard reaching retirement age as a reason for the termination of employment contracts, with the result that it is possible for any worker who has reached the age of 65 to begin drawing old-age pension and to continue to work for a company under the same conditions and with the same rights as before. The Committee asks to be kept updated on any case-law relating to age discrimination.

The Committee points out that under Article 1§2 of the Charter, domestic law must provide for the burden of proof to be reversed in the plaintiff’s favour in discrimination cases (Conclusions 2002, France; Syndicat de défense des fonctionnaires v. France, Complaint No. 73/2011, decision on the merits of 13 September 2012, §59). The Committee noted previously that the legislation did not provide for a shift in the burden of proof in discrimination cases and asked, in the absence of any legislation on the subject, for information on the practice of Andorran courts in discrimination cases.

The report reiterates that the courts apply the principle of in dubio pro operario as an overriding principle of the Labour Relations Code and it is possible for them to refer to the relevant legislation of the European Union and its member states, particularly that of Spain and France, which both provide for the shift in the burden of proof in discrimination cases. The report states that in a decision of 27 May 2014, the Civil Division of the Supreme Court of Justice declared the plaintiff’s dismissal without cause unlawful, holding that the dismissal concealed a discriminatory act as the worker was standing for election as staff representative. As to the shift in the burden of proof, the report states that the court found against the company because it had failed to demonstrate that the employee’s dismissal was unconnected with his candidature for the position of staff representative. The court decided that it was for the company to prove that the employee’s dismissal was unconnected with his candidature. The Committee asks for information in the next report on any decision by the Andorran courts on discrimination in employment, including decisions of the court of first instance (the Batllia).

The Committee noted previously that posts in the civil service which were linked to the exercise of sovereignty or public authority were reserved for Andorran nationals. The Committee asked exactly what types of post were reserved in this way and approximately how many (Conclusions 2012).

The report states that access to public sector jobs comprising tasks involving the exercise of sovereignty or direct or indirect participation in the exercise of public authority prerogatives of the state or other public bodies is reserved for Andorran nationals. In this connection, the report provides a list of posts reserved for Andorran nationals, which includes posts of management staff and other staff members working for the Ministries of Foreign Affairs, the Interior and Finance, the State Council, the police, the prison authorities, the customs office or the fire or forestry departments. The report states that access to public sector jobs is also possible for French, Portuguese and Spanish nationals under the same conditions as for Andorran nationals (in accordance with the Agreements of 14 June 2001 between the Principality of Andorra, the Kingdom of Spain and the French Republic, and of 18 October 2007 between the Principality of Andorra and the Portuguese Republic). 

The Committee points out that the only jobs from which foreigners may be barred are therefore ones that are inherently connected with the protection of law and order or national security and involve the exercise of public authority (Conclusions 2006, Albania). The Committee notes that the posts of firemen and forest guard are reserved to Andorran nationals. It asks whether these latter categories involve the exercise of public authority. Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 1§2 of the Charter in this respect.

The Committee asked previously for further information on awards of compensation made in discrimination cases (Conclusions 2012). The report explains that where a court finds that a dismissal by a company is based on an act of discrimination, employees may (i) claim compensation corresponding to that awarded for dismissal without cause or justification, which may not be lower than the equivalent of 45 days of salary per year of service in the company and may amount to a maximum of 30 months’ wages, or (ii) demand to be reinstated, with compensation for the act of discrimination and unlimited compensation for the damage caused, determined by the competent court (the Batllia). Termination by the employer of a fixed-term or piece-work contract prior to the fixed date, except in cases of dismissal for just cause or reason, requires the employer to pay unlimited compensation for the damage and loss incurred, determined by the competent court. In all cases, compensation for damage and loss incurred may not be lower than the compensation for dismissal without cause which would have been awarded in the case of a fixed-term contract or the equivalent of three months’ salary per year of work remaining until the end of the contract.

The report also states that in Decision No. 327/13 of 27 May 2014, the Civil Division of the Supreme Court of Justice held that the plaintiff’s dismissal without cause was based on discrimination and ordered the company concerned to pay him compensation of €109 390.50, which was added to the compensation of €72 843.42 paid initially by the company to the employee for dismissal without cause (for notice and financial reparation). The report adds that there is no case-law on the amounts of compensation awarded by courts in cases of dismissal on the basis of discrimination where employees have opted for reinstatement combined with compensation for damage and loss incurred. The Committee asks for (further) information in the next report on the compensation awarded in cases of discrimination. 

The Committee asks whether there is a national strategy for combating all forms of discrimination in employment. The Committee also asks how the bans on direct and indirect discrimination are enforced. 

2. Prohibition of forced labour

According to the report, the prohibition of forced labour is provided for by the Labour Relations Code and the Law on the Criminal Code of 21 February 2005 (No. 9/2005), amended by the Law of 11 December 2014 (No. 40/2014) making forced labour a criminal offence.

Prison work

According to the report, prison work is governed by the Decree of 29 October 2008 on the Regulation on the special employment relations of persons detained pending trial or serving a prison sentence, as amended by the Decree of 14 January 2009. This Regulation applies to employment contracts between prisons and adult prisoners under the age of 65 in pre-trial detention or serving an unconditional prison sentence and engaging in a professional activity while in prison.

The prison authorities are required to propose jobs according to their availability, listed in a catalogue describing the training required and the characteristics of each post on offer. Prisons may grant outside companies the possibility of carrying out an activity on their premises making use of the labour of prisoners. Work of this kind must be performed in accordance with the current regulations on recruitment to the civil service. It must be remunerated and comply with standard rules on rest periods and leave. Salaries are determined by the prison authorities according to output and the number of hours actually worked.Monthly wages must not be lower than the minimum interprofessional wage (€962 during the reference period). In exceptional circumstances, it is possible to fix wages according to the product delivered and not the number of hours carried out.Prisoners employed under a work contract are covered by the Andorran Social Security Scheme (CASS), which is compulsory for all workers engaging in a salaried activity in Andorra. The prison pays the related contributions after deduction of the corresponding employee share.

Domestic work

According to the report, Andorran legislation does not authorise inspections of the homes of private individuals who employ domestic staff.

The protection of domestic employees under criminal law in the event of exploitation by their employers is guaranteed by the Criminal Code, which applies to all workers including domestic workers. Relevant measures can be found under Title XIII of the Criminal Code on “Offences infringing workers’ rights”, particularly in the following articles: 249 (Degrading or dangerous working conditions), 250 (Abusive working conditions), 251 (Failure to adopt occupational safety measures) and 252 (Trafficking in illegal immigrants). Furthermore, Article 30 of the Criminal Code qualifies “abuse of authority, superiority or trust” as an aggravating circumstance and Article 33 establishes the rule that matrimonial or family links are circumstances which can alter criminal responsibility, either aggravating it or mitigating it according to the nature and effects of the offence or the offender’s motives.

The same conditions apply to migrants who work as domestic employees as to workers in other sectors. Under immigration regulations, job offers or preliminary contracts negotiated between companies or private employers and workers from other states do not bind the authorities when they are deciding whether to authorise immigration. All migrant workers, including domestic workers, have the right to terminate their employment contract with the company or employer who recruited them provided that they are in the country lawfully and may work for another company or employer. Under the Labour Relations Code, workers under fixed-term, piece-work or service contracts are entitled to terminate their contract unilaterally if they have good cause to do so and to ask for compensation through the courts. Workers with permanent contracts are entitled to terminate such contracts at any time, even without cause, subject to notice, as established by law. The Law of 31 May 2012 amending the Law on Immigration (No. 9/2012) establishes a general ban on changing sector of activity during the first year of validity of a migrant’s residence or work permit. However, a very large majority of immigrants in Andorra are not bound by this restriction as they are covered by the international agreements by which Andorra is bound (the Agreement of 14 June 2001 between the Principality of Andorra, the Kingdom of Spain and the French Republic on the entry, movement, residence and settlement of their nationals and the movement and residence in the Principality of Andorra of nationals of third countries and the Agreement of 18 October 2007 between the Principality of Andorra and the Portuguese Republic on the entry, movement, residence and settlement of their nationals).

3. Other aspects of the right to earn one’s living in an occupation freely entered upon

Requirement to accept the offer of a job or training

According to the report, all those receiving involuntary unemployment benefit must comply with an active reintegration contract, which includes a requirement to seek a job actively, to take part properly in training and vocational reintegration plans and to accept appropriate work proposed by the Employment Office.

Any decision entered in an administrative file opened for failure to comply with an active reintegration contract or, more specifically, for repeated rejections of job offers may be contested in the courts in accordance with the legal procedure established by the Civil Service Code.

Privacy at work

According to the report, although there is no specific legislation or regulation protecting workers from interference by employers in their private lives outside the workplace or working hours, the Labour Inspectorate has never received any complaints on the subject. Under Article 74 of the Labour Relations Code, employers must assign actual work to their employees under the conditions, in the place and for the length of time agreed. Article 55 of this Code contains the rules on on-call periods, during which employees may not fully take advantage of their free time and may be called on at any time to do work. 

The Committee considers the situation to be in conformity with regard to the prohibition of forced labour and the other aspects of the right to earn one’s living in an occupation freely entered upon. It asks for continually updated information in future reports on changes in the situation in law and in practice regarding these various aspects.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 1§2 of the Charter.

Article 1 - Right to work

Paragraph 3 - Free placement services

The Committee takes note of the information contained in the report submitted by Andorra.

It notes that the situation, which it previously found to be in conformity with the Charter has not changed significantly.

The Employment Service set up by decree in July 2002, operates under the supervision of the Ministry of the Interior (Labour Department). Its key role is to connect jobseekers and employers. The services it provides for its users are free of charge.

The composition of the Employment Service is as follows (total staff: nine): one head of unit, two employment advisers, one vocational guidance counsellor, one administrative employee and four assistant administrative employees.

The number of placements made by the Employment Service increased from 306 in 2011 to 789 in 2014. The number of people hired increased substantially, i.e. by 157,84% over four years. The number of vacancies also increased, by 114,48% in four years, from 2,003 in 2011 to 4,296 in 2014.

The placement rate varied from 15% to 25%. In 2014, it stood at 18,37%, because of the sharp rise in the number of vacancies.

The report states that the vacancies were filled increasingly quickly and that the length of time they remained available fell substantially compared to the previous periods, in part because of the job offers from employment programmes.

The proportion of vacancies which remained available for under one month was 79.47% in 2014. The proportion of vacancies which remained available for between three and six months and over six months stood at 1.77% and 0.51% in 2014 respectively.

Lastly, the social partners continued to play an active part in drawing up employment programmes within the Permanent Office for Vocational Training, the advisory body on vocational training, which comes under the Labour Department.

The Committee again requests that the next report provide information on private employment agencies in Andorra and on how they operate and co-ordinate their work with the public Employment Service.

Conclusion

The Committee concludes that the situation in Andorra is in conformity with Article 1§3 of the Charter.

Article 1 - Right to work

Paragraph 4 - Vocational guidance, training and rehabilitation

The Committee takes note of the information contained in the report submitted by Andorra.

As Andorra has accepted Article 9, 10§3 and 15§1 of the Charter, measures relating to vocational guidance, to vocational training and retraining of workers, and to vocational guidance and training for persons with disabilities are examined under these provisions.

The Committee considered the situation to be in conformity with the Charter as regards measures relating to vocational guidance (Article 9), and to vocational training for persons with disabilities (Article 15§1).

It deferred however its conclusion as regards measures concerning vocational training and retraining of workers (Article 10§3). For the same reasons, the Committee defers its conclusion on Article 1§4.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 9 - Right to vocational guidance

The Committee takes note of the information contained in the report submitted by Andorra.

The Committee noted previously (Conclusions 2008 and 2012) that access to vocational guidance in Andorra was free and open without discrimination to nationals of States Parties residing lawfully in the country.

As to vocational guidance for persons with disabilities, whether in the education system or the labour market, the Committee refers to its assessment on this point under Article 15 of the Charter.

Vocational guidance within the education system

Andorran legislation guarantees the right to educational and vocational guidance (Article 9 of the Law of 3 September 1993 on education) and provides for a school and university guidance service, which guides young people throughout their education to help them find courses in keeping with their personal characteristics and the demands of the Andorran labour market (Article 76 of the Law of 9 June 1994 on the organisation of the education system).

In the education system, educational and vocational guidance for pupils is mainly provided by a network of 16 educational psychologists, nine of whom work in nursery and primary schools (2 655 pupils in 2013-2014), five in lower secondary schools (1 168 pupils) and one at upper secondary level (231 pupils); a less regular service is also provided (fifteen hours per week instead of thirty in the other establishments) in the country’s vocational education sector (188 pupils). According to the report the budget in 2014 was €795 331.55. 

In addition, since 2004, an Educational and Vocational Guidance Centre (the COEP) has been in operation, pooling and co-ordinating all the various aspects linked to educational and vocational guidance and vocational integration, both in the education system and on the labour market. The staff of the COEP includes a psychologist and a centre manager and its budget in 2014 was €36 628.46.

The report states that all pupils between the ages of 14 and 18 attend numerous collective vocational guidance activities including vocational guidance days, interventions with groups or individuals by school psychologists and visits to vocational guidance centres and universities. These activities are proposed and organised directly by the schools in which the pupils are enrolled. In reply to the Committee’s question, the report gives details of the number and type of vocational guidance requests made by school pupils and dealt with by the COEP and confirms that all of these requests have been satisfied.

The COEP runs general information activities targeted at various types of user including provision of information and documents on career opportunities and educational paths in Andorra and neighbouring countries, study grants and support and vocational integration services and programmes. The service can be used on site but also by telephone and on line (website: http://www.educacio.ad/coep-centre-d-orientacio-educativa-i-professional).

Vocational guidance in the labour market

One of the tasks of the Employment Office, which was set up in 2002, is to provide vocational guidance for jobseekers and persons wishing to improve their work situation, to establish any co-operation required for this purpose with other public and private bodies including international ones and to make proposals to the government on means of improving vocational information and guidance services (Decree on the creation of the Employment Office of 31 July 2002, as amended in 2008 and 2010, Articles 3 and 4). Vocational information and guidance services are also provided for the entire population by the COEP. According to the report, the COEP’s main focus is to help its users choose a training course whereas the Employment Office concentrates more on guidance for jobseekers in the labour market. The guidance offered by this office takes account of the employment situation in the country as well as the vocational qualifications and the socio-professional skills of the persons drawing involuntary unemployment benefit it deals with so as to identify the kind of training best suited for the future careers of those concerned.

The Committee takes note of the information and data on guidance provided by the COEP (see above). It notes that in 2014, the Employment Office sent 252 invitations to vocational guidance interviews to unemployment benefit recipients. In 2014 the office employed nine people, including a counsellor with specific responsibility for vocational guidance and two job counsellors. The report does not provide any information, however, on the Employment Office’s budget for vocational guidance services. The Committee reiterates that to comply with Article 9 of the Charter, vocational guidance must be provided:

·         free of charge; 

·         by trained staff in sufficient numbers; 

·         to a significant number of people, attempting to reach the widest possible audience and;

·         with a sufficient budget.

It asks for up-to-date information on these items to be systematically provided in all future reports, especially figures on the resources, staff and number of beneficiaries of vocational guidance in the labour market. It also asks for the next report to state what information tools (media, brochures, events, etc.) are implemented in the area of vocational guidance in the labour market. In the meantime it reserves its position on these points.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 9 of the Charter.

Article 10 - Right to vocational training

Paragraph 1 - Technical and vocational training; access to higher technical and university education

The Committee takes note of the information contained in the report submitted by Andorra.

Secondary and higher education

According to the report, vocational education is ensured by the Andorran and French education systems. The Chambre of Commerce, Industry and Services as well as the representatives of the relevant departments of the Government meet to discuss the ways to improve and make vocational education more adapted to the needs. The Ministry of Education conducts a study to understand the educational and employment expectations of the secondary education students. The findings of the study are used to develop measures to be taken with a view to making education qualifications relevant from the perspective of professional integration in the job market.

The Committee notes that total number of students in vocational education rose from 325 in 2011-2012 to 363 in 2013-2014. The number of teachers in the same period increased from 9 to 26 in the Andorran system and from 30 to 40 in the French system of vocational and technological education.

As regards the funding, the budget allocated to vocational and continuing education in the Andorran system amounted to € 1,08 million and € 0,98 million respectively, while in the French system € 39,119 was spent on vocational education and € 43,207 on continuing education.

As regards the recognition and validation of professional experience, the persons possessing at least 3 years of professional experience can apply for the vocational education diploma (REVEP). According to the report, in 2014 45 persons have requested the recognition and validation of their professional experience.

Measures to facilitate access to education and their effectiveness

According to the report, the Act 9/2014 on financial aid in education establishes the criteria for financial assistance at different levels of education. According to this Act, in order to ensure effective right to education, the authorities have set up a system of financial aid to compensate for the economic and social inequalities and encourage further studies after compulsory education. This act also extends the financial aid to specialised education as well as long distance education.

The national education award for the best students has been extended to the vocational baccalauréats in the three education systems. It consists of financial aid (registration fees, equipment, travel, accommodation etc), allowing the winners to continue their studies in the next cycle of higher education (higher vocational education or university education), provided that they fulfil the conditions of admission.

The University of Andorra offers higher vocational education with an advanced vocational diploma (DPA). The Lycée Comte de Foix offers vocational baccalauréat and the superior technician certificate (BTS). In 2013-2014 there were 23 DPA students at the University of Andorra and 24 BTS students at the Lycée Comte de Foix and 190 students in vocational baccalauréat.

Conclusion

The Committee concludes that the situation in Andorra is in conformity with Article 10§1 of the Charter.

Article 10 - Right to vocational training

Paragraph 2 - Apprenticeship

The Committee takes note of the information contained in the report submitted by Andorra.

The Committee takes note of the employment programme of young workers aged 16 to 20 years, which was developed in 2014. The programme offers a diverse structure in favour of vocational training and employment in three phases, with the aim of providing training to young people who have completed their mandatory schooling without obtaining a certificate of completion of compulsory education. The programme comprises two modules enabling the youth to develop specific skills and acquire vocational skills. These three phases should enable young people to access employment and job training. Through various measures envisaged, the Ministry of Education intends to ensure that young people are better prepared to enter the labour market.

According to the report, in the past it was easier for young people who had not completed compulsory education to find a job. However, the situation has changed and some unqualified young people fail to enter the labour market and cannot return to school either because they do not have the certificate of completion of the compulsory education.

The Committee takes note of the statistics relating to the number of apprenticeship contracts. The Committee recalls that under Article 10§2 of the Charter apprenticeship is assessed on the basis of the following elements: length of the apprenticeship and division of time between practical and theoretical learning. The main indicators of compliance are the existence of apprenticeship and other training arrangements for young people, the numbers enrolled and the total spending, both public and private. The Committee asks the next report to provide this information.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 10§2 of the Charter.

Article 10 - Right to vocational training

Paragraph 3 - Vocational training and retraining of adult workers

The Committee takes note of the information contained in the report submitted by Andorra.

Employed persons

The Committee notes from the report that in 2014 there were 85 training courses offered by the Chamber of Commerce, Industry and Services where 1,162 persons were enrolled with a total cost of € 155,944. Despite the economic crisis, the number of courses offered has increased in the course of 2011-2014 largely due to the development of the fiscal framework which obliges the enterprises to undergo training in this field as well as the willingness of professionals to widen their knowledge in the field of finance.

The continuing training of adult workers is organised by the Ministry of Education. During the reference period the vocational education services have organised and offered modules of training with varying duration and content. The Committee takes note of the courses offered by the Adult Training Service as well as by the School of Sport and Mountain education. According to the report, in the French system the total budget allocated to continuing training stood at € 43,207.

Unemployed persons

The Committee notes from the conclusion on Article 1§1 that the unemployment rate stood at 4.86% in 2014, which is well below the EU average.

The Committee recalls that Article 10§3 also covers labour market training for the unemployed and the activation rate – i.e. the ratio between the annual average number of previously unemployed participants in active measures divided by the number of registered unemployed persons and participants in active measures.

The Committee asks the next report to provide information on the activation rate. It also asks how the burden of the cost of vocational training is shared among public bodies, unemployment insurance systems, enterprises and households as regarding continuing training.

Conclusion

Pending receipt of the information requested,the Committee defers its conclusion.

Article 10 - Right to vocational training

Paragraph 4 - Long term unemployed persons

The Committee takes note of the information contained in the report submitted by Andorra.

The report states that unemployed persons who do not find employment within 12 months are regarded as “long-term unemployed”.

The report further states that in a resolution dated 20 June 2014, the Consell General (Parliament) instructed the Government to conduct specific individual measures for the long-term unemployed to give them access to the labour market. An action plan was put in place in December 2014 by the education and labour ministries, which are responsible for vocational training and employment.

According to Employment Service data, the number of long-term unemployed persons was 37 in 2011 and 127 in 2014. The long-term unemployment rate was 5.8% in 2011 and 16.5% in 2014. The Committee takes note of the increase in the number of long-term unemployed between 2011 and 2014.

In terms of the action taken, the report states that the first measures involved identification of the vocational and personal skills of the relevant unemployed persons.

The Committee points out that in order to assess the situation in Andorra with regard to Article 10§4 of the Charter, it requires information on: a) the types of training and retraining measures available on the labour market; b) the number of persons in this type of training, including the special attention given to young long-term unemployed and; c) the impact of the measures on reducing long-term unemployment.

The Committee requests that the next report provide the above information.

The Committee also requests that the next report indicate whether equal treatment with respect to access to training and retraining for long-term unemployed persons is ensured for non-nationals lawfully resident in the country.

Consequently, given the lack of the above information, the Committee is not able to assess the situation as to compliance by Andorra with Article 10§4 of the Charter.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 10 - Right to vocational training

Paragraph 5 - Full use of facilities available

The Committee takes note of the information contained in the report submitted by Andorra.

Fees and financial assistance

The Committee takes note of the evolution of the system of scholarships and financial aid to students both in secondary as well as in higher education. It notes that in the course of 2011-2014 the number of scholarships granted increased by 13%. The number of scholarship applications in pre-university education have increased from 1,679 in 2011-2012 to 1,911 in 2013-201 and the number of scholarships granted from 1433 to 1552, respectively. The total funding of scholarships has increased from € 1,19 million to € 1,37 million. As regards higher education, the Committee notes that there has been a significant rise in the amount of loans and scholarships in 2012-1013 which fell somewhat in the year 2013-2014 but however remained on an upward trend compared to 2011.

As regards the equality of treatment of foreign nationals concerning access to financial aid and scholarships, the Committee notes from the report that the Act 9/2014 of 3 June 2014 on financial aid in education sets a minimum residence period of three consecutive years for students to apply for financial aid.

The Committee recalls that under Article 10§5 of the Charter equality of treatment as regards access to financial assistance for studies shall be provided to nationals of other States Parties lawfully resident in any capacity, or having authority to reside by reason of their ties with persons lawfully residing, in the territory of the Party concerned. Students and trainees, who, without having the above-mentioned ties, entered the territory with the sole purpose of attending training are not concerned by this provision of the Charter. Article 10§5 does not require the States Parties to grant financial aid to any foreign national who is not already resident in the State Party concerned, on an equal footing with its nationals. However, it requires that nationals of other States Parties who already have a resident status in the State Party concerned, receive equal treatment with nationals in the matters of both access to vocational education (Article 10§1) and financial aid for education (Article 10§5).

Those States Parties who impose a permanent residence requirement or any length of residence requirement on nationals of other States Parties in order for them to apply for financial aid for vocational education and training are in breach of the Charter.

Therefore, the Committee considers that the situation in Andorra is not in conformity with the Charter as the law establishes a length of residence requirement of three years for foreign students to apply for financial aid for education.

Training during working hours

In reply to the Committee’s question in the previous conclusion, the report states that in the private sector, the authorisation for training leave is laid down in Articles 72 of the Labour Relations Code and is set at six days or twelve half days of paid leave to pass an exams in relation to the occupational activity. Article 47 of the Labour Relations Code establishes that the hours for training can be paid as regular working hours. The employer and the worker may agree to the obligation of the employee to remain in the business for a determined period once the training is completed. Moreover, in case of breach of this obligation on the part of the employee, he/she it must pay compensation, which shall in no case exceed the cost of training.

Efficiency of training

According to the report, the Quality Council of the University of Andorra promotes the culture of quality and ensures continuous improvement of the quality of higher education. This Council has put in place several evaluation schemes, including the assessment of degrees awarded by the University of Andorra, the evaluation of the quality of teaching and services. Various guidelines and procedures have been prepared in this respect. The Committee asks whether social partners are involved in evaluation.

At the end of each academic year, the Council updates the student guide published on the website of the University. At the end of their second year, each student must have completed 445 hours of training at an enterprise. The University of Andorra maintains good relations with the companies, which facilitates the organisation of training courses, their follow up and evaluation.

Conclusion

The Committee concludes that the situation in Andorra is not in conformity with Article 10§5 of the Charter on the ground that the law establishes a length of residence requirement of three years for students to apply for financial aid.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 1 - Vocational training for persons with disabilities

The Committee takes note of the information contained in the report submitted by Andorra.

According to the report, in 2011, there were 123 registered persons with disabilities, 38 of whom were 17 or under, in 2012, there were 136, 45 of whom were 17 or under, in 2013, there were 186, 42 of whom were 17 or under, and in 2014, there were 259. 

Andorra signed the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol on 27 April 2007 and ratified them on 11 March 2014.

Definition of disability

The report states that the Law of 17 October 2002 on the rights of persons with disabilities contains a definition of disability based on the one adopted by WHO in its International Classification of Functioning (ICF, 2001) (see Conclusions 2012). 

The report also states that the law and the National Evaluation Commission (CONAVA) consider all persons with a degree of disability (physical, mental and/or sensory) of 33% or more to be disabled. Under Article 3 of the law, public action in the disability field must include activities such as prevention, rehabilitation, promoting equal opportunities and maintenance support.

Anti-discrimination legislation

In reply to the Committee’s question, the report states that before and during the reference period, no administrative appeal followed by legal action was lodged. It details an example of good practices in the Santa Coloma lower secondary school, where pupils with disabilities are incorporated into the mainstream class with the help of an educator, activities are orientated towards the social inclusion role of the educational community and awareness-raising activities focus on respect for differences, disability and non-discrimination.

In its previous conclusion (Conclusions 2012), the Committee asked whether, in view of the legal criteria used to qualify a person as disabled, the anti-discrimination legislation applied only to persons presenting a degree of physical, mental and/or sensory disability of at least 33%. According to the report, all the definitions given by the Law of 17 October 2002 on the rights of persons with disabilities took into account the situations described while bearing in mind the principle of non-discrimination. Furthermore prevention activities were provided for persons whose degree of disability was lower than 33%. According to the report, cases not covered by the law are the responsibility of the emergency social assistance services.

Education

In its previous conclusion (Conclusions 2012), the Committee found that it had not been established that the right of persons with disabilities to mainstream education and training was effectively guaranteed. According to Andorra’s report, there are three education systems, namely the Andorran, French and Spanish ones. Children with disabilities may attend the school chosen by their parents. 

·         According to the report, during the 2011-2012 school year, 129 children with disabilities attended school, 116 of whom were in mainstream schools, 10 in special schools and three in socio-educational centres abroad. 

·         During the 2012-2013 year, 139 children with disabilities attended school, 127 in mainstream schools, 11 in special schools and one in a socio-educational centre abroad. 

·         Lastly, in 2013-2014, 142 children with disabilities attended school, 129 in the mainstream, 11 in special schools and two in socio-educational centres abroad. 

The Committee notes that according to this information, the number of pupils with disabilities attending mainstream schools increased during the reference period whereas the number of pupils in special schools remained stable. 

However, these data do not match those presented previously concerning the total number of persons with disabilities divided up according to year over the reference period. The report accounts for this by the fact that the National Evaluation Commission (CONAVA) assesses the degree of disability of people who request it to do so. Therefore it is possible that the data is duplicated at a later stage because the same person may request an assessment several times over. Nonetheless, the Committee asks for accurate, detailed information on the total number of persons with disabilities in Andorra to be included in the next report. 

As to mainstream education, the report states that since the 1980s the Government has been pursuing an education policy which promotes inclusive schooling for pupils with disabilities. For this purpose, human or technical resources or retraining tools are provided to facilitate access to schools, such as the following measures, applied in secondary schools:

·         A personalised education plan for children suffering from a mental, physical or sensory disability. This involves the intervention of multidisciplinary teams trained by the school staff and by specialised contributors. Under the Agreement of 26 March 2013 on co-operation between the Andorran Government, the Notre Dame de Meritxell Special School and the Andorran Social Security Fund, which governs the integrated social educational, medical and medico-social support provided for these pupils, specialised staff (such as educators, school assistants, speech therapists, psychomotricians, physiotherapists and ergonomics experts) are provided by the Notre Dame de Meritxell School. According to the report, the Government allocated the following annual budgets to this scheme during the reference period.

·         Support grants awarded by the Government to children with disabilities suffering from a long-term illness lasting more than three months and preventing them from attending school. According to the report, these grants are provided for by the Decree of 3 December 2008 establishing the regulations on mainstream state schooling for children with disabilities.

In its previous conclusion (Conclusions 2012), the Committee asked for more details on home or hospital schooling, particularly on how it is organised and how many pupils it concerns. According to the report, under the Decree of 3 December 2008, home or hospital schooling is considered to form part of mainstream education and is aimed solely at children with disabilities who would normally be attending a mainstream school but, because of an illness or another health problem, cannot attend school for three months or more. During the reference period, there was only one pupil in this situation. According to the report, the Ministry of Education is in the process of reviewing this decree. 

As to education in special schools (including socio-educational centres abroad), the report states that this is reserved for children with very serious mental disabilities whose educational needs call for a highly adapted environment. This entails major human resources, specialist equipment and some quite substantial medical care.

As to the other questions raised in the previous conclusion (Conclusions 2012), the report states that on 16 January 2013 the Ministry of Education issued a Decree establishing the regulations on the Ministry of Education’s Commission on Special Measures in Official Examinations (COMEPO), the purpose of which is to make the necessary arrangements for pupils with disabilities to ensure that they have equal chances in official examinations. These arrangements relate only to the practical aspects of examinations, not their content or their degree of complexity. During the reference period, various special arrangements were made by the Ministry of Education’s Department for Official Examinations and the Validation of Qualifications (see the report for more details).

The report emphasises that most teachers in Andorra obtained their qualifications in France or in Spain, where special needs education is not an integral part of the general teacher training curriculum. However, the Ministry of Education subsidises many specific training courses enabling teachers to acquire the requisite knowledge in this area. In addition, the University of Andorra offers a bachelor’s degree in educational sciences to which special needs education can be added as an extra training module.

Vocational training

In its previous conclusion (Conclusions 2012), the Committee asked for information on the number of persons with disabilities attending vocational training courses. It emerges from the report that only 2 pupils with disabilities attended the mainstream vocational training college during the reference period. The report states that, given Andorra’s small size, there is no special vocational training for children with disabilities in the country. 

The special arrangements made at the aforementioned college include both school materials and equipment such as computers and sloping desktops, and the special supervision provided by teachers and the educational psychologist. The report explains that 98% of the 129 children with disabilities attending school suffer from disabilities which prevent them from passing the lower secondary school certificate which is essential for entrance to vocational training. 

Regarding vocational training in higher education, new legislation in force facilitates access to higher and university education for persons with disabilities, as follows:

·         Law No. 9/2014 of 3 June 2014 on study grants (BOPA no. 39, year 26, 02/07/2014) (entry into force in September 2014). It repeals the law of 2002, establishes what levels of education may be eligible for study grants and widens the benefits available for special education. The law facilitates access to higher education for persons with disabilities through more flexible and appropriate registration and assessment criteria.

·         Registration and assessment criteria for persons with disabilities have been adjusted in line with the person’s degree of disability, depending on whether it is equal to or higher than 33%, equal to or higher than 66%, or higher still than this.

·         The Decree approving the Regulation on study grants (BOPA no. 49, year 26, 20/08/2014). The Committee asks the next report to provide information on the impact in practice of this Law in terms of increased mainstreaming of pupils with disabilities.

During the reference period, no persons with disabilities registered at the University of Andorra (higher and university vocational training). 

On the subject of apprenticeships, the report refers to the Law of 12 June 2008 on employment contracts, Article 89 of which states that the Labour Inspectorate can authorise such contracts for persons with disabilities subject to the approval of the National Evaluation Commission (CONAVA). In addition, under Article 15 of the Law of 17 October 2002 on the rights of persons with disabilities, some of the requirements of apprenticeship contracts may be relaxed or adjusted according to the nature or the degree of the person’s disability so as to guarantee equal opportunities. 

Conclusion

The Committee concludes that the situation in Andorra is in conformity with Article 15§1 of the Charter.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 2 - Employment of persons with disabilities

The Committee takes note of the information contained in the report submitted by Andorra.

Employment of persons with disabilities

The report states that according to the database run by the National Evaluation Commission (CONAVA), the number of registered persons with disabilities in Andorra was 186 in 2013, of whom 138 (74%) were between 18 and 64.

Anti-discrimination legislation

In its previous conclusion (Conclusions 2012) the Committee found that it had not been established that there were effective anti-discrimination legislation and remedies. It asked therefore whether there were effective remedies for persons with disabilities who considered themselves to have been victims of discrimination in employment on the ground of disability. According to the report there is no particular legislation on specific remedies for persons with disabilities in such cases. Moreover; there are various effective remedies for the victims of all types of discrimination and, generally speaking, the possibility of bringing an action for compensation in the courts. The effective remedies listed in the report are as follows:

·         The possibility of lodging a complaint directly with the Ministry of Health, Social Affairs and Employment, which will forward it to the appropriate authorities for investigation or;

·         with the labour inspectorate.

Article 98.5 of Law No. 53/2008 of 18 December on the Labour Relations Code establishes the procedure for compensation or any other type of reparation in the event of discriminatory dismissal. It follows that persons with disabilities considering themselves to be victims of discrimination on the ground of their disability must bring proceedings before the civil courts. According to the report, no persons with disabilities applied to the courts for compensation for discrimination in employment on the ground of disability during the reference period.

·         It is also possible to address the Mediator or the Andorran Federation of Persons with Disabilities (although their actions will not be binding).

On the basis of the information provided, the Committee considers that the situation is in conformity with the Charter on this point.

In its previous conclusion (Conclusions 2012), the Committee also found that it had not been established that the legal obligation to provide reasonable accommodation was respected. It had therefore asked how reasonable accommodation was implemented in practice. In reply, the report states that under the Law of 17 October 2002 on the rights of persons with disabilities, companies recruiting such persons may request support from the state to convert their workplaces and guarantee access to employment. 24 April 2014 saw the adoption of Law No. 6/2014 on social and medico-social services, Article 30 of which contains a list of technical aids. In addition, according to the report, the Government covers the employer’s share of social security contributions, which was 14.5% of the minimum wage of €942 during the reference period. However, the report also states that of the 34 persons with disabilities working in the open labour market, some do not want to take advantage of this benefit.

The report also refers to the Regulation of 17 November 2004 on the employment and social security of persons with disabilities, which provides for co-operation and co-ordination procedures to promote recruitment of persons with disabilities. According to the report, no assistance was requested to convert premises and guarantee access to the workplace for persons with disabilities during the reference period and there is no case-law on the subject.

The report does not answer the question on whether the requirement to provide reasonable accommodation has prompted an increase in the employment of persons with disabilities in the open labour market. The Committee therefore repeats its question.

Measures to encourage the employment of persons with disabilities

The Committee points out that in its previous conclusion (Conclusions 2012), it found that the situation was not in conformity with Article 15§2 of the revised Charter, particularly on the ground that persons with disabilities were not guaranteed effective access to the open labour market.

Under the Agreement of 26 March 2013 (renewed) on co-operation between the Andorran Government, the Notre Dame de Meritxell Special School and the Andorran Social Security Fund, which governs the integrated social, educational, medical and medico-social support provided for these pupils, sheltered employment facilities are provided by the Notre Dame de Meritxell School. The report states that persons who need special working arrangements or personal assistance for their vocational integration may make use of various programmes. The number of persons with disabilities enrolled on sheltered vocational integration programmes run by the special Notre Dame de Meritxell School between 2011 and 2014 was 191, or 35.46% of the total number of persons with disabilities of working age, as calculated by the National Evaluation Commission (CONAVA). The Committee does note, however, that the measures have resulted in an increase in the number of persons with disabilities taking part in programmes and hence in the number employed in the open labour market. 

In its previous conclusion (Conclusions 2012), the Committee asked for information on any measures to keep persons with disabilities in employment, particularly persons who had become disabled as a result of an industrial accident or occupational disease. In its answer on this point the report refers to the Law of 17 October 2012 on the rights of persons with disabilities. 

According to the report, working groups were set up during the reference period (on social well-being, health and work and social security) to draw up a plan to promote employment for persons with disabilities for the purposes of vocational integration. 

Furthermore, at the end of 2014, the Ministry of Health and Employment set up a panel bringing together several stakeholders (companies, the Chamber of Commerce, Industry and Services, the Andorran Social Security Fund, the Associations of Family-Run Companies and bodies representing persons with disabilities) to promote recruitment of persons with disabilities on the open labour market in the business sector.

According to the report, a special project involving the Employment Office has also been set up with a view to normalising these situations and establishing a standard circuit within a body that covers the entire population. The Committee asks for details of the content and the outcome of this project to be presented in the next report.

In its previous conclusion (Conclusions 2012), the Committee also asked what had been done to enable the integration of persons with disabilities into the labour market and what their rate of progress into it was. The report states that during the reference period, 11 persons with disabilities entered the open labour market. 

The Committee considers that Andorra thus respects obligations to promote the employment of people with disabilities.

Conclusion

The Committee concludes that the situation in Andorra is in conformity with Article 15§2 of the Charter.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 3 - Integration and participation of persons with disabilities in the life of the community

The Committee takes note of the information contained in the report submitted by Andorra.

Anti-discrimination legislation and integrated approach

In its previous conclusion (Conclusions 2012), the Committee found that there was no anti-discrimination legislation to protect persons with disabilities, which explicitly covered the fields of housing, transport and telecommunications as well as effective remedies for those who have been treated unlawfully. The Committee therefore asked for information in the next report on any anti-discrimination legislation covering these areas, together with its content and any judicial or non-judicial remedies in the event of discrimination, and a description of any relevant case-law. In view of the absence of information, the Committee considers that it has not been established that anti-discrimination legislation covers the spheres cited above, and that there are effective remedies available to people with disabilities alleging discriminatory treatment in all the specified areas.

In its previous conclusion (Conclusions 2012), the Committee found that the situation was not in conformity with Article 15§3 of the revised Charter on the ground that there was not established that people with disabilities have effective access to technical aids. According to the report, the new Law on social and medico-social services came into force on 24 April 2014. Under this law, technical grants are available to convert housing, remove architectural and communication barriers and purchase assistance products. The Committee notes this development and asks for the next report to describe the progress made in the implementation of the new legislation.

Consultation

The Committee notes that there has been no change in the situation which it previously held to be in conformity (Conclusions 2012).

Forms of financial aid to increase the autonomy of persons with disabilities

According to the report, the total number of persons assessed by the National Evaluation Commission (CONAVA) (which assesses degrees of disability and capacity to work) by 31 December 2014 was 869, 534 (or 61%) of whom were of working age (between 18 and 65). Of these 534 people, 50 were paid a supplement to their wage in the form of a solidarity pension for persons with disabilities. This is a regular financial benefit guaranteeing a minimum income for persons with a serious disability who cannot work or find it particularly difficult to find or retain a job because of their disability and do not have sufficient resources to support themselves. According to official figures from the Ministry of Health, Social Affairs and Employment, during the reference period from 2011 to 2014, 65 people received a solidarity pension, more specifically 24 in 2011 (at a monthly cost of €18 986.40), 17 in 2012 (€14 562.19), 9 in 2013 (€6 769.77) and 15 in 2014 (€9 604.19).According to the report, at the end of 2014, 200 people were receiving this pension (at a monthly cost of €126 845.67).

Persons with a degree of disability of over 33% are entitled to the blue badge which alerts people to the fact that they are disabled and gives them various advantages. According to the report, during the reference period, 276 people were sent a blue badge, namely 55 in 2011, 70 in 2012, 71 in 2013 and 80 in 2014.

Measures to overcome obstacles

Technical aids

In its previous conclusion (Conclusions 2012), the Committee asked whether persons with disabilities were eligible for technical aids free of charge or were obliged to cover a part of their cost. If an individual contribution was required, it asked whether the state at least was meeting part of the cost. It also asked whether persons with disabilities were eligible for support services, such as personal assistance or home help, free of charge or were obliged to meet part of the cost themselves. Finally, it asked whether there were arrangements for assessing the obstacles to communication and mobility faced by persons with disabilities and to identify the technical or support measures they needed to overcome these obstacles. According to the report, this question comes under Articles 29 and 30 of the Law of 24 April 2014 on social and medico-social services, which establishes the content of technical aids and their classification. Assistance for persons with functional or communication disorders is guaranteed and free of charge. Assistance products are co-financed, with part of the cost covered by the Andorran Social Security Fund. These aids are charged to the social services or, in other words, the Government covers their cost.

Communication

In its previous conclusion (Conclusions 2012), the Committee asked what was being done to encourage access to new communication technologies. The report points out that a wide range of technical aids guaranteeing access to communications and new technologies is provided for by Article 29 of the Law of 24 April 2014. It also emphasises that during the reference period, only one case had arisen (an interpretation into sign language, for which the payment to the professional concerned was covered by the Government).

Mobility and transport

As to mobility, the report states that persons with a degree of disability of more than 33% receive the blue badge, which enables them to use public transport free of charge. During the reference period 276 people were awarded the blue badge. 

According to the report, six grants or financial benefits were awarded for the conversion of vehicles for persons with reduced mobility.

Housing

In its previous conclusion (Conclusions 2012), the Committee found that the situation in Andorra was not in conformity with Article 15§3 of the revised Charter because it had not been established that persons with disabilities had effective access to housing. It had therefore asked for information on grants available to individual people with disabilities for home renovation work, lift installation and the removal of barriers to mobility, the number of beneficiaries of such grants and the general progress made on improving access to housing. The report points out that housing grants consist of assistance with the financing of rental housing and, to be entitled to apply for this type of grant, the housing concerned must comply with the legal requirements.

According to the report, several articles of the Law of 24 April 2014 guarantee access to housing for persons with disabilities through ad hoc financial assistance when those concerned find themselves in one of the situations corresponding to the established scales (Articles 17, 28, 30, 31, etc.). According to the report, it is also possible, among other things, to use these grants to remove architectural barriers.

With regard to access to housing, the RENOVA programme promotes the renovation of existing buildings to make them more accessible and habitable. During the reference period, a total of 77 grants and cash benefits were allocated to improve access (including the removal of architectural barriers and the provision of technical aids and other aids facilitating individual autonomy). The Committee notes that the number of grants and cash benefits increased during the reference period.

In addition, the Social Welfare Department issues appeals for projects from non-profit-making bodies legally established in Andorra. It also runs welfare programmes and finances several projects run by associations for persons with disabilities. Non-profit-making organisations may apply for grants, which are awarded only if they can present a project. During the reference period, 13 associations for persons with disabilities presented projects.

The Committee notes that according to the report, the regulation providing for assistance in moving into or converting housing is being drawn up. It asks for detailed information on this regulation to be included in the next report.

Culture and leisure

With regard to culture and leisure, the Social Welfare Department implemented the INTEGRA Project, which is aimed at the social integration of children and young people with disabilities (see Conclusions 2012). 

In 2013, the Department launched a new programme entitled INTEGRA PLUS, whose aim is to increase the participation of young people of all ages with physical, psychological or mental disabilities. The programme covers young up to the age of 18. The facilitators who work with these children attended special training in 2011. During the reference period the number of children who benefited from the INTEGRA Programme was as follows: 19 in 2011, 9 in 2012, 8 in 2013 and 12 in 2014, while the INTEGRA PLUS Programme involved 6 children in 2013 and 11 in 2014. 

In the field of sports, Special Olímpic Andorra (SOA) offers persons with mental disabilities an opportunity to practice a sport (see Conclusions 2012). It currently involves 50 athletes.

Conclusion

The Committee concludes that the situation in Andorra is not in conformity with Article 15§3 of the Charter on the following grounds:

·         it has not been established that housing, transport and communication are covered by the anti-discrimination legislation;

·         it has not been established that there are effective remedies available to persons with disabilities alleging discriminatory treatment.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 4 - Right of nationals to leave the country

The Committee takes note of the information contained in the report submitted by Andorra, including as regards the agreements on free movement which have been or are being negotiated with certain countries.

It refers to its previous conclusion (Conclusions 2012), in which it noted that the right to enter and leave a country is guaranteed by Article 21§1 of the Constitution and, since 2008, Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It also noted that temporary restrictions on this right could be imposed by the courts in exceptional circumstances in the context of parole conditions in criminal law (Article 110§2 of the Code of Criminal Procedure).

Conclusion

The Committee concludes that the situation in Andorra is in conformity with Article 18§4 of the Charter.

Article 20 - Right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex

The Committee takes note of the information contained in the report submitted by Andorra.

Equal rights

The Committee points out that it examines aspects relating to maternity protection and family responsibilities under Articles 8 and 27 of the Charter (Conclusions 2015).

The Committee found previously (Conclusions 2008) that the situation in Andorra was not in conformity with Article 20 of the Charter because the legislation did not guarantee the shift in the burden of proof for persons alleging discrimination on the ground of sex. 

In its previous conclusion, the Committee deferred its decision on this point, asking for details of judicial decisions in discrimination cases (Conclusions 2012). The Committee refers to its conclusion on Article 1§2 of the Charter, in which it notes that in the absence of any legislation on the subject, the Andorran courts apply the principle of in dubio pro operario in discrimination cases and it is possible for them to refer to the relevant legislation of the European Union and Spain, both of which provide for the shift in the burden of proof in such cases. It also refers to a decision of 27 March 2014, in which the Civil Division of the Supreme Court of Justice held that it was for the company to prove that the dismissal of one of its employers was not an act of discrimination. The Committee asks for information in the next report on any decision by the Andorran courts on the prohibition of discrimination on the ground of sex in matters of employment and occupation, including decisions of the court of first instance (the Batllia).It asks whether the lower courts have upheld the decision by the Supreme Court of Justice with regard to the shift in the burden of proof in cases involving discrimination on the ground of sex.

On the subject of the amount of compensation awarded in discrimination cases, the Committee also refers to its conclusion under Article 1§2 of the Charter. It asks for information in the next report on the compensation awarded by the courts in cases of discrimination on the ground of sex in matters of employment and occupation.

The Committee asked previously whether equal pay was expressly provided for in legislation and whether there were methods for comparing jobs and pay (Conclusions 2012). The report states that equal pay for work of equal value is guaranteed by the principle of non-discrimination enshrined in Article 74 of Law No. 35/2008 on the Labour Relations Code, which expressly requires employers to abide by the principles of equality and non-discrimination with regard to pay.

On the subject of pay comparisons, the Committee refers to its Statement of Interpretation on Article 20 (Conclusions 2012), according to which, in disputes on equal pay, legislation must authorise pay comparisons between different companies in the following cases:

·         cases in which statutory rules apply to the working and pay conditions in more than one company;

·         cases in which several companies are covered by a collective works agreement or regulations governing the terms and conditions of employment; 

·         cases in which the terms and conditions of employment are laid down centrally for more than one company within a holding [company] or conglomerate.

The report states that it is possible to compare the remuneration of workers by gender or by occupation within a specific sector of activity thanks to the data on average pay collected in the Labour Force Survey, which presents the following information: a classification of occupations based on the National Occupations Classification (CNO), average weekly working hours and typical net monthly salaries.

In reply to the Committee’s request for detailed information on disputes on equal pay, the report states that there is no case-law on the subject.

Equal opportunities

The Committee noted previously that a National Commission for Equality had been set up in 2010 and a National Action Plan for Equality had been devised. It asked to be kept informed of the work of the Commission and outcome of the National Action Plan in the field of gender equality (Conclusions 2012). 

The report states that the Government decided to transfer the task of preparing the bases for a regulation on gender equality to the Consultative Council on Health and Social Well-Being (Consell Assessor en matèria de Salut i Benestar), which has members from the private and public sectors.Under Law No. 6/2014 on social and medico-social services (Llei de serveis socials i sociosanitaris), these services must cover the entire population, particularly people who have special social needs and are in situations of dependency, social exclusion or risk. Article 36 provides for the establishment of the National Commission for Social Well-Being (Comissió Nacionalde Benestar Social), which is a political and technical body made up of representatives of various Government departments responsible for social well-being, social services, health, education, labour, and justice together with a representative of each of the 7 Comuns (municipal authorities). The report states that in setting up this Commission, the Government’s aim was to promote the National Action Plan for Equality. In 2014, the Government sponsored a bill to eradicate violence against women and domestic violence and the establishment at national and municipal level of departments dealing with gender equality issues. The plan was for these two projects to be implemented in 2015. The Committee asks for information on the implementation and impact of these projects in relation to gender equality.

The Committee asks for information in the next report on the way in which equal treatment for women and men is promoted and guaranteed in collective agreements.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Andorra is in conformity with Article 20 of the Charter.

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

ARMENIA

This text may be subject to editorial revision.

The role of the European Committee of Social Rights (the Committee) is to rule on the conformity of the situation in States Parties with the Revised European Social Charter (the Charter). The Committee adopts conclusions through the framework of the reporting procedure and decisions under the collective complaints procedure.

The following chapter concerns Armenia, which ratified the Charter on 21 January 2004. The deadline for submitting the 10th report was 31 October 2015 and Armenia submitted it on 23 June 2016. The Committee received on 22 December 2015 observations from the International Organisation of Employers (IOE) expressing its perspective on the application of Article 24.

In accordance with the reporting system adopted by the Committee of Ministers at the 1196th meeting of the Ministers’ Deputies on 2-3 April 2014, the report concerns the following provisions of the thematic group "Employment, training and equal opportunities":

·         the right to work (Article1),

·         the right to vocational guidance (Article 9),

·         the right to vocational training (Article 10),

·         the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),

·         the right to engage in a gainful occupation in the territory of other States Parties (Article 18),

·         the right of men and women to equal opportunities (Article 20),

·         the right to protection in cases of termination of employment (Article 24),

·         the right to workers to the protection of claims in the event of insolvency of the employer (Article 25).

Armenia has accepted all provisions from the above-mentioned group except Articles 9, 10§§1 to 5, 15§1 and Article 25.

The reference period was 1 January 2011 to 31 December 2014.

In addition, the report contains also information requested by the Committee in Conclusions 2014 in respect of its findings of non-conformity due to a repeated lack of information:

·         the right to just conditions of work – weekly rest period (Article 2§5),

·         the right to just conditions of work – information on the employment contract (Article 2§6),

·         the right to organise (Article 5),

·         the right to bargain collectively – conciliation and arbitration (Article 6§3),

·         the right to bargain collectively – collective action (Article 6§4),

·         the right of workers to take part in the determination and improvement of working conditions and working environment (Article 22),

·         the right of workers’ representatives to protection in the undertaking and facilities to be accorded to them (Article 28),

The conclusions relating to Armenia concern 19 situations and are as follows:

– 7 conclusions of conformity: Articles 1§4, 2§5, 2§6, 6§3, 18§1, 18§3 and 18§4

– 10 conclusions of non-conformity: Articles 1§1, 1§2, 1§3, 5, 6§4, 15§2, 15§3, 20, 24 and 28

In respect of the other 2 situations related to Articles 18§2 and 22 the Committee needs further information in order to examine the situation. The Committee considers that the absence of the information requested amounts to a breach of the reporting obligation entered into by Armenia under the Charter. The Committee requests the Government to remedy this situation by providing the information in the next report.

During the current examination, the Committee noted the following positive developments:

Article 15

·         Law on Employment, which came into force on 1 January 2014 and sets out measures to be taken to help persons with disabilities integrate into the labour market.

Article 20

·         On 20 May 2013 the National Assembly of the Republic of Armenia adopted the “Law on ensuring equal rights and equal opportunities for women and men”, which prescribes guarantees for ensuring equal rights and equal opportunities for women and men in political, social, economic, cultural and other areas of public life.

The next report will deal with the following provisions of the thematic group "Health, social security and social protection":

·         the right to safe and healthy working conditions (Article 3),

·         the right to protection of health (Article 11),

·         the right to social security (Article 12),

·         the right to social and medical assistance (Article 13),

·         the right to benefit from social welfare services (Article 14),

·         the right of elderly persons to social protection (Article 23),

·         the right to protection against poverty and social exclusion (Article 30).

The report should also contain information requested by the Committee in Conclusions 2015 in respect of its findings of non-conformity due to a repeated lack of information:

·         the right to safe and healthy working conditions – safety and health regulations (Article 3§1),

·         the right of children and young persons to protection – special protection against physical and moral dangers (Article 7§10),

·         the right of employed women to protection of maternity – regulation of night work (Article 8§4),

·         the right of children and young persons to social, legal and economic protection – assistance, education and training (Article 17§1),

·         the right of migrant workers and their families to protection and assistance – departure, journey and reception (Article 19§2),

·         the right of migrant workers and their families to protection and assistance – equality regarding employment, right to organise and accommodation (Article 19§4),

·         the right of migrant workers and their families to protection and assistance – equality regarding taxes and contributions (Article 19§5),

·         the right of migrant workers and their families to protection and assistance – equality regarding legal proceedings(Article 19§7),

·         the right of migrant workers and their families to protection and assistance – guarantees concerning deportation(Article 19§8),

·         the right of workers with family responsibilities to equal opportunity and treatment – Participation in working life (Article 27§1),

·         the right of workers with family responsibilities to equal opportunity and treatment – iIllegality of dismissal on the ground of family responsibilities(Article 27§3)

The deadline for submitting that report was 31 October 2016.

Conclusions and reports are available at www.coe.int/socialcharter.

Article 1 - Right to work

Paragraph 1 - Policy of full employment

The Committee takes note of the information contained in the report submitted by Armenia.

Employment situation

According to the World Bank, the GDP growth rate in Armenia increased between 2011 and 2012 from 4.7% to 7.2% before decreasing again in 2013 to 3.5%. The GDP growth rate stabilised in 2014 at the level of 3.4%.

According to Eurostat, the overall employment rate remained practically stable during the reference period (53.3% (2011) – 53.7% (2014)).

The male employment rate decreased (2009; 69.3% – 2014; 63.1%) as well as the female employment rate (49.0% (2011) to 46.3% (2014).

According to the World Bank, the unemployment rate decreased (2011; 20.7% – 2014; 17.1%). The youth unemployment rate (% of active population aged 15-24) increased slightly from 13.7% in 2011 to 14.0% in 2014. The long-term unemployment rate (% of the total labour force) remained stable at 6.0% during the reference period.

The Committee notes that during the reference period the economic growth as well as the unemployment rate stabilised although the male and female employment rates decreased.

Employment policy

The Committee notes from the report, that the legislative framework of employment policies is guaranteed by a law revised in December 2013. This legislative framework is to be implemented by a number of policy measures, in particular the “2013 – 2018 Employment Strategy and the Report on Social Involvement of the Republic of Armenia” approved in November 2012 and “Concept paper of the Law of the Republic of Armenia” approved in April 2013.

These measures include specific employment programmes for vulnerable groups such as persons with disabilities. For example, salary compensation is provided for a person accompanying a disabled person. The Committee notes that none of these policy measures is accompanied by statistical data with respect to the number of beneficiaries.

The Committee notes that the report fails to provide the requested data on the overall activation rate as well as the information on the evaluation of the applied employment policies.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 1§1 of the Charter on the ground that it has not been established that employment policy efforts have been adequate in combatting unemployment and promoting job creation.

Article 1 - Right to work

Paragraph 2 - Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects)

The Committee takes note of the information contained in the report submitted by Armenia.

1. Prohibition of discrimination in employment

The Committee had previously deferred its conclusion on the grounds that there was insufficient information provided (Conclusions 2008). In its previous conclusion (Conclusions 2012) the Committee wished to receive information on the following issues:

·         Whether and how discrimination on grounds of sexual orientation is prohibited in employment;

·         How indirect discrimination is defined;

·         Whether there are exceptions to the prohibition of discrimination for genuine occupational requirements;

·         Judicial procedure in discrimination cases, whether there is a shift in the burden of proof;

·         Remedies in discrimination cases; whether there are limits to the amount of compensation that may be awarded in discrimination cases;

·         Whether foreign nationals have full access to employment and whether there are jobs in the Armenian civil service reserved for nationals.

The Committee noted previously that under Article 14§1 of the Armenian Constitution, everyone is equal before the law. Discrimination on grounds of gender, race, skin colour, ethnic or social origin, genetic characteristics, language, religion, philosophy, political or other convictions, membership of a national minority, property status, disability, age or other factors of a personal or social nature is prohibited. Article 3§1.3 of the Labour Code provides for equality of parties to employment relationships irrespective of gender, race, nationality, language, origin, citizenship, social status, religion, marital and family status, age, philosophy and convictions, membership of a political party, trade union or public organisation and other factors unrelated to the employee’s professional qualities (Conclusions 2008).

From the information provided in the report, which reiterates the above mentioned legal provisions, the Committee notes that the discrimination on grounds of sexual orientation is not prohibited in employment. It therefore concludes that the situation is not in conformity with Article 1§2 of the Charter on the ground that there is no protection against discrimination in employment on grounds of sexual orientation.

The Committee further notes that there is no clear and comprehensive definition and prohibition of direct and indirect discrimination covering all aspects of employment and occupation, including recruitment. The Committee recalls that legislation should prohibit both direct and indirect discrimination and discrimination should be prohibited in connection with recruitment or with employment conditions in general (remuneration, training, promotion, transfer and dismissal and other detrimental action) (Conclusions XVI-1 (2002), Austria). The Committee takes note of the information from the EU Progress Report that Armenia still does not have a comprehensive legal framework against discrimination and that the anti-discrimination strategy, which would help making legislative steps more consistent, remained a draft (European Commission, Country Progress Report 2014, SWD(2015) 63 final). The Committee concludes that the situation is not in conformity with the Charter on the grounds that the indirect discrimination is not defined and prohibited by the legislation and discrimination is not prohibited in connection with recruitment in employment.

With regard to the remedies available to victims of discrimination, the report indicates that in case an employment contract has been terminated by the employer due to discrimination, the employee can be re-instated and receive compensation for the period between the termination of the contract and the moment of re-employment. The report adds that in cases when reinstatement is not possible, the employee shall be entitled to compensation in a maximum amount of 12 months’ average wage. The Committee recalls that remedies available to victims of discrimination must be adequate, proportionate and dissuasive. Therefore, compensation for all acts of discrimination including discriminatory dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers. Any ceiling on compensation that may preclude damages from making good the loss suffered and from being sufficiently dissuasive is proscribed (Conclusions 2012, Andorra). It concludes that the situation is not in conformity with the Charter on the ground that the upper limit on the amount of compensation that may be awarded in discrimination cases may preclude damages from making good the loss suffered and from being sufficiently dissuasive.

The Committee further asked information on the role of the Human Rights Defender in discrimination cases and the number of discrimination cases dealt with by the courts or Human Rights Defender (Conclusions 2012). The report indicates the Human Rights Defender is an independent official, who protects the human rights and freedoms in case of violation by the state and local self-government bodies and officials. The Human Rights Defender shall be entitled to interfere in the employment relations (including in cases of discrimination at work) only when violation of a right is the result of the action or inaction of a state body or an official. The report indicates that separate statistics on the number of cases of discrimination at the workplace are not conducted by the Office of the Human Rights Defender, but during the reference period 2011-2014 the Defender received 268 applications from the citizens regarding labour rights, including discrimination at work. The report does not provide data with regard to the number of cases of discrimination in employment dealt with by the courts. It only provides information on the number of cases dealing with employment relations in general during the reference period. The Committee notes from a Direct Request of ILO-CEACR that the Government stated that the Human Rights Defender did not receive any complaints of discrimination based on race, gender, religion, political opinion or national extraction in employment and that no cases of discrimination in employment were dealt with by the courts (Direct Request (CEACR) – adopted 2012, published 102nd ILC session (2013), Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee asks that the next report indicate whether there are no complaints of discrimination in employment and information on any developments in this regard.

The report does not provide any information on the applicable rules regarding the burden of proof in disputes concerning allegations of discrimination. The Committee recalls that domestic law should provide for a shift in the burden of proof in favour of the plaintiff in discrimination cases (Conclusions 2002, France). It concludes therefore that the situation is not in conformity with the Charter on the ground that it has not been established that the legislation provides a shift in the burden of proof in discrimination cases.

With regard to the access of foreigners to civil service posts, the report indicates that according to Section 11 of the Law of the Republic of Armenia “On civil service”, the citizens of the Republic of Armenia meeting the requirements submitted in accordance with the job description for the given positions of the civil service, fluent in Armenian and having attained the age of 18 shall be eligible for a position of the civil service, irrespective of nationality, race, gender, faith, political or other views, social origin, property or other status.

The Committee recalls that States Parties may make foreign nationals’ access to employment on their territory subject to possession of a work permit but they cannot ban nationals of States Parties, in general, from occupying jobs for reasons other than those set out in Article G of the Charter. The only jobs from which foreigners may be banned therefore are those that are inherently connected with the protection of the public interest or national security and involve the exercise of public authority (Conclusions 2012, Albania). The Committee asks whether all posts in the civil service are reserved to Armenian citizens. Otherwise, it asks which are the categories of jobs/positions in the civil service which are banned to foreign nationals. Meanwhile, the Committee reserves its position on this point.

The Committee previously requested information on any measures taken to eliminate discrimination in employment (Conclusions 2012). No information is provided in the report. The Committee reiterates its question on the manner in which the authorities ensure the implementation of the anti-discrimination legislation in employment. It further asks the next report to provide information on any concrete positive measures/actions taken or envisaged to promote equality in employment and to combat all forms of discrimination in employment.

2. Prohibition of forced labour

The Committee previously held that the situation in Armenia was not in conformity with Article 1§2 on the ground that it had not been established that the exceptions to the prohibition of forced labour were in conformity with the Charter (Conclusions 2012).

The Committee takes note from the report of the provisions relating to the implementation of the restrictions to the right to work authorised by Article 3§2 of the Labour Law. In particular, Article 75 of the Labour Law, under which it is forbidden to call a strike in public sectors which are important for the economy, public security, national defence and urgent medical aid services. Claims made by employees of such organisations and services must be discussed at national level through bodies for social partnership, with the participation of the relevant trade union organisation and the employer. Strikes are also prohibited in natural disaster areas as well as regions where martial law or a state of emergency has been declared. Article 106 of the Labour Law governs temporary changes in conditions of employment in emergency situations (transfer and suspension) and guarantees the right to demand compensation for any loss suffered. Some of the responsibilities in the event of violations of labour legislation are established in Article 41 of the Code of administrative offences. The administrative penalty may be followed by a fine of fifty times the minimum wage, which employers have to pay if they continue to violate the workers’ rights. Article 132 of the Criminal Code prohibits trafficking in human beings, sexual exploitation, slavery and forced labour.

In the light of this information, the Committee considers that the situation is in conformity with the Charter from this point of view.

Work of prisoners

The Committee notes from the report that where working time, rest periods, pay, safety and health are concerned, prison work is governed by the Labour Law. Work relations are governed by general legislation, except in cases provided for in the Prison Code. Prisoners may do all sorts of work for the prison administration or for external employers approved by the prison administration, except those forbidden by law. In closed or semi-closed prisons, prisoners work in special work cells or in their own cell. In semi-open and open prisons sectors of industrial and agricultural activities can be organised. Only people who have permission to leave the prison without convoy or escort may be involved in work outside the prison boundaries and the number of hours to be spent outside the prison must be stipulated in the work contract. Prisoners may take part in unpaid maintenance work, provided it is with their consent, not during rest periods, and for no more than two hours a day.

The Committee refers to its Statement of Interpretation of Article 1§2 on prison work (Conclusions 2012) and asks that the next report contain updated information on the social protection of prisoners working during their detention (employment injury, unemployment, health care and old age pensions).

Domestic work

According to the report domestic work is governed by the Labour Law, Article 3§1 of which prohibits forced labour and violence against employees.

In its previous conclusion, the Committee referred to its Statement of Interpretation of Article 1§2 on the existence of forced labour in the domestic environment and in family enterprises. As the current report does not provide any information on the legislation adopted to combat this type of forced labour and the measures taken to apply it, the Committee reiterates its request that the next report include relevant information on this point. In particular it asks whether the homes of private individuals who employ domestic workers can be inspected and whether foreign domestic workers are entitled to change employers in the event of abuse or if they lose their right to a residence permit if they leave their employer.

3. Other aspects of the right to earn one’s living in an occupation freely entered upon

Minimum periods of service in the Armed Forces

The Committee previously concluded that the situation in Armenia, where military service lasts 24 months, was not in conformity with Article 1§2 of the Charter on the ground that the duration of the alternative civil service – 42 months – amounted to an excessive restriction on the right to earn one’s living in an occupation freely entered upon. It notes from the report that the law on alternative service was amended in 2013 and that the duration of alternative military service is now 30 months and that of alternative civil service 36 months. The Committee considers that the length of the alternative civil service in comparison with the duration of alternative military service remains too long and concludes that the situation is still not in conformity with the Charter on this point.

With regard to the minimum period of service in the armed forces, the Committee pointed out in its previous conclusion that any minimum period of service in the armed forces must be of a reasonable duration and in cases of longer minimum periods due to education or training that an individual has benefited from the length must be proportionate to the duration of the education and training. Likewise any fees/costs to be repaid on early termination of service must be proportionate (Conclusions 2012). The Committee asks that the next report provide updated information on the minimum periods of service in the armed forces and on the impact of studies or training courses followed by soldiers on the duration of their service in the armed forces and on the possible financial repercussions of early termination of service.

Requirement to accept the offer of a job or training

According to the report, a State Programme for Employment for 2014, approved in September 2013, is designed to improve the labour market by bringing it into line with international standards. According to the legislation in force, unemployed persons are entitled to assistance in finding work and they are obliged to accept a second offer of employment presented by an employment agency. Anyone who rejects a second job offer loses their unemployed status and the right to state support. Job-seekers who have professional qualifications and to whom a suitable offer has not been made six months after they contact an employment agency, may find themselves obliged to change or improve their qualifications. In such cases, proposed work which corresponds to the newly acquired qualifications is considered to be suitable. Paid work proposed by an employment agency for a maximum of six months, which does not require any specific qualifications, is considered suitable for unqualified job-seekers and those who have not worked in their area of qualification for the five previous years.

The Committee takes note of this information. Referring to its Statement of Interpretation on Article 1§2 in the general introduction to Conclusions 2012 it asks that the next report include relevant information on the remedies that may be used to challenge the decision to suspend or withdraw assistance from the State in case of unemployment.

Privacy at work

The Committee notes from the report that, pursuant to Article 149 of the Labour Law of the Republic of Armenia, to ensure discipline in the workplace or the performance of urgent work in specific cases, employers may require employees to be on duty in the workplace or at home at the end of the working day or on days of rest or public holidays, not more than once a month without the employees’ consent and not more than once a week with their consent. Where the duty is performed in the workplace after the end of the working day, the total working time may not exceed the maximum duration of a working day fixed by Article 139 of the Labour Law. The duration of the duty in the workplace or at home on days of rest or public holidays may not exceed eight hours a day. The duration of work carried out in the workplace must be equal to the normal working time, whereas the duration of work done at home must be not less than half of the normal working time. Where the duration of the duty in the workplace or at home exceeds the working time prescribed by the relevant legislation, the employee must, during the following month, be given a rest period of the same duration, or such time may be added to the annual leave or be paid as overtime work. Employees under the age of eighteen are not allowed to be engaged in duty work under these conditions, whereas pregnant women and women with children under the age of three may only be engaged with their free consent.

The Committee refers to its Statement of Interpretation on Article 1§2 on this matter (Conclusions 2012) and asks that the next report provide information on how an employer’s responsibility for the violation of workers’ right to privacy is implemented.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 1§2 of the Charter on the grounds that:

·         indirect discrimination is not defined and prohibited by the legislation;

·         discrimination is not prohibited in connection with recruitment in employment;

·         there is no protection against discrimination in employment on grounds of sexual orientation;

·         the upper limit on the amount of compensation that may be awarded in discrimination cases may preclude damages from making good the loss suffered and from being sufficiently dissuasive;

·         it has not been established that legislation provides for a shift in the burden of proof in discrimination cases;

·         the duration of alternative civil service amounts to an excessive restriction of the right to earn one’s living in an occupation freely entered upon.

Article 1 - Right to work

Paragraph 3 - Free placement services

The Committee takes note of the information contained in the report submitted by Armenia.

While deferring its previous conclusions due to lack of information (Conclusions 2012), the Committee considered that the absence of the information required amounts to a breach of the reporting obligation entered into by Armenia under the Charter and that the Government consequently has an obligation to provide the requested information in the next report on this provision.

The report does not contain any information on the number of persons placed via the public employment service during the reference period. In this respect, from another source, the Committee notes the following data: 2011: 10,786 persons; 2012 – 11,538 persons; 2013: 12,650 persons; 2014: 2,406 persons (source: website of the State Employment Agency of the Republic of Armenia – employment main indices: http://employment.am/en/39/free.html). Should these data be confirmed, the Committee asks that the next report comments on the decrease in the number of placements in 2014.

The report does not provide any information on quantitative indicators to assess the effectiveness of employment service. In addition to the number of persons placed via the public employment service, the Committee asks that the next report contain information on the following indicators: a) total number of registered job seekers and unemployed persons b) number of vacancies notified to the State Employment Agency (SEA); c) number of persons placed via SEA; d) placement rate (i.e. percentage of placements compared to the number of notified vacancies); e) placements by SEA as a percentage of total employment in the labour market. It also asks the respective market shares of public and private services. Market share is measured as the number of placements effected as a proportion of total hirings in the labour market. Data concerning the abovementioned indicators are to be provided for the different years of the reference period, including possible comparisons and comments.

In reply to the Committee’s request, the report indicates that statistics on average time taken to fill a vacancy are not available. The Committee could not find in the report the requested information on the number of persons working in SEA and the number of counsellors involved in placement services. It asks that this information is provided in the next report. As regards the ratio of placement staff to registered job seekers, the report specifies that one employee serves 769 persons on average.

In reply to a Committee’s request on the adoption of a legal basis for the operation of private employment agencies, the report states that “the activities of non-state job placement organisations have been regulated within the scope of the reforms in the field of employment and within the framework of implementation of state employment programmes reserved to the State Employment Service”. The Committee asks that the next report provide details on the relevant legal basis; where applicable, information on the abovementioned programme and reform should be also included in the next report. The Committee takes note of the information concerning the programme “Provision of support for making use of the services provided by non-state job placement organisations”. It asks that the next report provide updated information on the implementation of this programme.

Given the lack of information on quantitative indicators to assess the effectiveness of free employment service and other aspects, including the organisation and functioning of SEA, it has not been established that the employment services operate in an efficient manner in Armenia.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 1§3 of the Charter on the ground that it has not been established that free placement services operate in an efficient manner.

Article 1 - Right to work

Paragraph 4 - Vocational guidance, training and rehabilitation

The Committee takes note of the information contained in the report submitted by Armenia.

Article 1§4 guarantees the right to vocational guidance, continuing vocational training for employed and unemployed persons and specialised guidance and training for persons with disabilities. It is complemented by Articles 9 (right to vocational guidance), 10§3 (right of adult workers to vocational training) and 15§1 (right of persons with disabilities to vocational guidance and training), which contain more specific rights to vocational guidance and training. However, as Armenia has not accepted these provisions, the Committee assesses the conformity of the situation under Article 1§4.

Equal treatment

In its previous conclusion (Conclusions 2012), the Committee requested updated information as regards equal treatment of nationals of other States Parties and the specific legal basis for it. The report refers to Article 3 of the Law “On employment”, as the legal basis regulating the employment rights of foreign and stateless residents. The Committee asks the next report to clarify whether all persons, including nationals of other States Parties, are guaranteed equal access to vocational guidance and continuing vocational training, without any length of residence requirement.

Vocational guidance

Professional orientation and career services for out-of-school youth, job seekers and unemployed persons are provided by the State Employment Agency, under the competence of the Ministry of Labour and Social Affairs. According to the report, the number of people who were provided with vocational guidance was 26 431 in 2011, 23 521 in 2012, 21 986 in 2013 and 25 248 in 2014.

In addition, as from 2007, a “Youth Professional Orientation Centre” (see Conclusions 2008), provides guidance to young persons entering the labour market for the first time. In 2008-2012 the Centre addressed about 1 500-3 000 beneficiaries per year through individual, group and self-service services for professional orientation of youth. The Committee takes note of the increase in the number and quality of the services provided and of the activities carried out by the Centre during the reference period, including the organisation of public events and the development of tools and material.

In 2012, according to the report, some important initiatives have been taken to make professional orientation available from general education and through all stages of employment and professional career. The introduction of such a vocational guidance system is one of the objectives of the Employment Strategy of the Republic of Armenia for 2013-2018 and its Implementation Action Plan, adopted by the Government in November 2012, as well as of the "Concept Paper of development of professional orientation and its Implementation Action Plan for 2012-2015", adopted in October 2012. Pursuant to the Concept Paper, a system of professional orientation shall be introduced, with the main objective of creating opportunities for free and conscious choice of a professional activity complying with the interests, needs and characteristics of a person, as well as with demand for staff qualified and competitive in the labour market. The vocational guidance system will involve both general education and vocational education institutions, as well as regional centres of integrated social services, the relevant trade specialists of which will provide professional orientation services adapted to the participants (pupils, students, job seekers, unemployed persons and others). Based on statistical data of 2013-2014, the introduction of this system should provide regular professional orientation to about 360 000 pupils in general education and about 110 000 students of professional and higher education institutions, while out-of-school persons may continue to apply to the State Employment Agency and/or its local agencies for complex social services.

The report furthermore indicates that methodological support, staff training, enhancement of qualification and provision of information for the entities of the professional orientation system are to be provided by the Methodological Centre for Professional Orientation, which is the legal successor of the abovementioned “Youth Professional Orientation Centre” (in accordance with a Government’s decision of 13 December 2012). The Centre shall implement the programmes of methodological support for the entities of the system free of charge, within the framework of the state programme. During the reference period, the Centre ensured the training of about 800 specialists.

The Committee asks the next report to provide updated information on the implementation of the Concept Paper, in particular as regards the human and financial resources allocated to vocational guidance and the number of beneficiaries, whether in the education system or in the labour market.

Continuing vocational training

The report indicates that, pursuant to Article 21 of the Law “On employment”, professional (vocational) training is provided to persons who are unemployed or facing the risk of dismissal. They can get initial training for a period of up to 6 months, or training aimed at re-specialisation and enhancement of their qualification for a period of up to 3 months. Vocational training aims at supporting participants in acquiring competences which will improve their chances to find a job corresponding to the labour market’s demands, to reduce the risk of dismissal and to engage in entrepreneurial activity. The ultimate purpose of the programme is to ensure stable employment of unemployed persons and job seekers facing the risk of dismissal through enhancement of their competitiveness in the labour market. Vocational training can also be provided by other bodies, in conformity with the Law "On Procurement". Long-term unemployed persons have a priority right to attend such trainings.

According to the report, the number of unemployed people who were given vocational training was 1804 in 2011, 1477 in 2012, 1500 in 2013 and 1591 in 2014.

The Committee asks whether employees – apart from those considered to be at risk of dismissal – are entitled to vocational training and, if so, it reiterates its request for information on the number of employees attending continuing vocational training.

In its previous conclusions (Conclusions 2007, 2008 and 2012), the Committee had asked whether training costs were covered by companies or the employees themselves. It notes in this respect that the report refers to an amendment to Article 201 of the Labour Code which was introduced in 2015, out of the reference period, obliging employers to organise vocational training at their expense for students and employees recruited for up to six months. It also notes that the Labour Code provides for special educational leave (Articles 171 and 174). Under Article 200 of the Labour Code, employees must continue to be paid their average daily wage when they attend training at their employer’s request; where employees follow a training course on their own initiative, payment conditions are governed by a collective agreement or a one-off agreement between the two parties.

Guidance and vocational training for persons with disabilities

The report confirms that persons with disabilities are entitled, free of charge, to vocational guidance and training. The Committee asks the next report to provide further details, including statistical data, concerning guidance targeted at persons with disabilities.

As regards vocational training, the report indicates that it is implemented taking into account the Individual rehabilitation programme drawn up by the local agencies of the Medical Social Expert Examination Agency. The Committee previously noted (Conclusions 2012) that a programme on "Vocational training and development of working skills of disabled persons" has been in place since 1995. The aim is to assist participants in finding a suitable job through the acquisition of new abilities or the carrying out of entrepreneurial activities. The beneficiaries of the programme are provided with a monthly scholarship in the amount of 50 percent of the minimum salary.

According to the report, the number of persons with disabilities involved in the programme was: 118 in 2011, 84 in 2012, 116 in 2013 and 121 in 2014.

The Committee asks the next report to provide updated information on the measures taken to ensure equal access of persons with disabilities to vocational guidance and training, the types of training available to such persons and the number of participants.

Conclusion

Pending receipt of the requested information, the Committee concludes that the situation in Armenia is in conformity with Article 1§4 of the Charter.

Article 2 - Right to just conditions of work

Paragraph 5 - Weekly rest period

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that the right to a weekly rest period could not be forfeited or replaced by financial compensation and that adequate safeguards existed to ensure that workers do not work for more than twelve consecutive days without a rest period (Conclusions 2014, Armenia).

Article 2§5 guarantees a weekly rest period, which insofar as possible shall coincide with the day traditionally or normally recognised as a day of rest in the country or region concerned. Although the rest period should be “weekly”, it may be deferred to the following week, as long as no worker works more than twelve days consecutively before being granted a two–day rest period. The right to weekly rest periods may not be replaced by compensation and workers may not be permitted to give it up.

The report states that weekly rest is regulated by Article 155 of the Labour Code which expressly provides that for employees working six days a week, the common rest day shall be Sunday, and in case of a five-day working week, the rest days shall be Saturday and Sunday. In sectors and industries where where work may be required during the common rest days the rest shall be granted on other days of the week.

Employees shall in any event be entitled to a weekly uninterrupted rest period of not less than 35 hours.

Finally, the report explains that the Labour Code does not include any provisions providing that employees may substitute weekly uninterrupted rest period for financial compensation or otherwise waive their right to a weekly rest period. Moreover, there is no provision for postponing or transferring the weekly rest days.

The Committee understands that waiving or postponing the weekly rest period is not provided for by the legislation and as such it considers the situation to be in conformity with the Charter. However, it asks that the next report state whether waiving or postponing the weekly rest period is legally possible by individual or collective agreement, and if not, what is the situation in practice (for example on the basis of labour inspection data).

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Armenia is in conformity with Article 2§5 of the Charter.

Article 2 - Right to just conditions of work

Paragraph 6 - Information on the employment contract

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that the right to information on the employment contract was guaranteed (Conclusions 2014, Armenia).

Article 2§6 guarantees the right of workers to written information when starting employment. This information can be included in the employment contract or another document (Conclusions 2014, Republic of Moldova). This information must at least cover essential aspects of the employment relationship or contract, i.e. the following:

·         the identities of the parties and the place of work;

·         the date of commencement of the contract or employment relationship and, in the case of a temporary contract or employment relationship, the expected duration thereof;

·         the amount of paid leave;

·         the length of the periods of notice in case of termination of the contract or the employment relationship;

·         the remuneration;

·         the length of the employee’s normal working day or week;

·         where appropriate, a reference to the collective agreements governing the employee’s conditions of work (Conclusions 2003, Bulgaria).

The report states that Article 14 of the Labour Code was amended by the Law HO-96-N of 22 June 2015 and henceforth provides that employment relations between the employee and the employer shall be deemed to arise on the basis of an employment contract concluded in writing as prescribed by the labour legislation or an individual legal act on accepting employment. Moreover, Article 84 of the Labour Code, also as amended by the aforementioned 2015 law and now provides that the employment contract and the individual legal act on accepting employment shall include the following items:

·         (1) the year, month, date and place of adoption of the individual legal act and conclusion of the employment contract;

·         (2) the first name, last name (also patronymic name, upon his or her request) of the employee;

·         (3) the name of the organisation or the name of the employer who is a natural person;

·         (4) the structural subdivision (in case of availability thereof);

·         (5) the year, month and date of the commencement of work;

·         (6) the name of the position and/or official functions;

·         (7) the amount of the base salary and/or the method of determining it;

·         (8) the additional payments, increments, supplementary payments and etc. paid to employees in the prescribed manner;

·         (9) the validity period of the individual legal act or the employment contract (where necessary);

·         (10) the duration and conditions of the probation period where a probation period is prescribed;

·         (11) the regime of working time — normal duration of working time or incomplete working time or shorter working time or a summary calculation of working time;

·         (12) the type and duration of annual leave (minimum, additional, extended);

·         (13) the position, first name and the last name of the person signing the legal act.

According to the report it follows from Article 85 of the Labour Code that, before commencing the work, the employer or the employer’s authorised person shall be obliged to properly introduce the employee to the conditions of employment, the collective agreement (where available), the internal disciplinary rules and other legal acts of the employer regulating the employee’s work at the workplace.

On the basis of this information the Committee considers that the situation is compatible with the Charter. It nevertheless requests confirmation that the written contract shall indicate the length of the periods of notice in case of termination of the contract or the employment relationship.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Armenia is in conformity with Article 2§6 of the Charter.

Article 5 - Right to organise

The Committee takes note of the information contained in the report submitted by Armenia.

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that there is adequate protection against discrimination for employees who are trade union members or participate in trade union activities; that trade union representatives have access to workplaces to carry out their responsibilities (Conclusions 2014, Armenia).

Under Article 5 trade union officials must have access to the workplace and union members must be able to hold meetings at work in so far as employers’ interests and company requirements permit (Conclusions XVI-1 (2000), France). In addition trade union members must be protected from any harmful consequence that their trade union membership or activities may have on their employment, particularly any form of reprisal or discrimination in the areas of recruitment, dismissal or promotion because they belong to a trade union or engage in trade union activities (Conclusions 2010, Moldova) Where such discrimination occurs, domestic law must make provision for compensation that is adequate and proportionate to the harm suffered by the victim ( Conclusions 2004 Bulgaria).

In a previous conclusion (Conclusions 2010, Armenia) the Committee asked whether trade union representatives have access to workplaces to carry out their union responsibilities and whether union members are entitled to hold meetings in the workplace. Previous reports did not provide answers in this respect. The Committee therefore concluded that the situation is not in conformity with the Charter on the ground that it has not been established that trade union representatives have access to worplaces to carry out their responsibilities, the current report fails to provide any information on this issue therefore the Committee reiterates its previous conclusion.

The Committee noted previously that Article 3 of the Labour Code provides for the equality of parties in employment relations irrespective of their trade union affiliation. Moreover, Article 114 (4)(1) of the Labour Code provides that trade union membership or participation in trade union activities during non-working hours, and upon consent of the employer during working hours, shall not be deemed a lawful reason for the termination of an employment contract. The Committee noted, however, that the report did not indicate whether there is any protection against harmful consequences of discrimination for employees who are trade union members or engage in trade union activities, nor whether compensation is provided for that is adequate and proportionate to the harm suffered by the victim. The Committee therefore concluded that the situation is not in conformity with the Charter on the ground that it has not been established that there is adequate protection against discrimination for employees who are trade union members or engage in trade union activities (Conclusions 2014).

The report provides information on remedies for those who have been unlawfully dismissed, reintegration and compensation, but does not directly address the questions previously put by the Committee, therefore the Committee reiterates its previous conclusion.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 5 of the Charter on the grounds that:

·         it has not been established whether there is adequate protection against discrimination for employees who are trade union members or participate in trade union activities;

·         it has not been established that trade union representatives have access to workplaces to carry out their responsibilities.

Article 6 - Right to bargain collectively

Paragraph 3 - Conciliation and arbitration

TIn application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that mediation/conciliation procedures exist in the public sector (Conclusions 2014, Armenia).

Article 6§3 applies also to the public sector(Conclusions III, (1973), Denmark, Germany, Norway, Sweden).

According to the report the mediation/conciliation services for the public sector are the same as those in place for the private sector. The Committee recalls that it has previously found the situation with regard to the private sector to be in conformity with the Charter. The Committee asks the next report to provide information on the relevant legislation.

Conclusion

Pending receipt of the information requestd the Committee concludes that the situation in Armenia is in conformity with Article 6§3 of the Charter.

Article 6 - Right to bargain collectively

Paragraph 4 - Collective action

The Committee takes note of the information contained in the report submitted by Armenia.

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that the restrictions on the right to strike in the energy supply services comply with the conditions established by Article G and it had not been established that striking workers are protected from dismissal after a strike (Conclusions 2014, Armenia).

Under Article 6§4 prohibiting strikes in sectors which are essential to the community is deemed to serve a legitimate purpose since strikes in these sectors could pose a threat to public interest, national security and/or public health (Conclusions I (1969), Statement of Interpretation) However, simply banning strikes even in essential sectors – particularly when they are extensively defined, i.e. “energy” or “health” – is not deemed proportionate to the specific requirements of each sector. At most, the introduction of a minimum service requirement in these sectors might be considered in conformity with Article 6§4 (Conclusions XVII-1 (2004) Czech Republic).

According to the report Article 75 of the Labour Code prohibits, inter alia, strikes in the energy supply services (electricity, gas etc). However no further details are provided, while strikes in other essential services are permitted subject to the provision of a minimum services, no such provision appears to be made in respect of energy supply services. Therefore the Committee finds that the situation is still not in conformity with the Charter on this point.

As regard the dismissal of striking workers, while the report does not directly address the issue, the Committee notes that an employer is not permitted to subject employees to disciplinary measures for participating in a strike and may not hire new employees to replace striking workers. The Committee infers from this that it is not permitted to dismiss striking workers, either during or after a strike. However it asks the next report to provide confirmation of this. Meanwhile, it reserves its position.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 6§4 of the Charter on the grounds that it has not been established that the restrictions on the right to strike in the energy supply services comply with the conditions laid down by Article G of the Charter.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 2 - Employment of persons with disabilities

The Committee takes note of the information contained in the report submitted by Armenia.

Armenia ratified the UN Convention on the Rights of Persons with Disabilities on 22 September 2010. The first report on the implementation of the Convention was published in 2013.

Employment of persons with disabilities

The report does not provide any figures. The Committee notes from Armenia’s first report to the UN Committee on the Rights of Persons with Disabilities (2013) that in 2012, there were 182 379 persons with disabilities in the country, 11 057 of whom had a first-degree disability, 86 402 a second-degree one, 76 767 a third-degree one, and 8 156 of whom were children. 

The Committee requests up-to-date figures on the total number of persons with disabilities, the number of people with disabilities of working age, the number in employment (in the open market or in sheltered employment), the number benefiting from employment promotion measures, the number seeking employment and the number who are unemployed. In the absence of these figures, it cannot be established that the situation is in conformity with Article 15§2.

Anti-discrimination legislation

In its previous conclusion (Conclusions 2012), the Committee found that the situation was not in conformity with Article 15§2 of the Charter on the ground that it had not been established that persons with disabilities were guaranteed effective protection against discrimination in employment. Consequently, it asked for information on the judicial and non-judicial remedies provided for in the event of discrimination on the ground of disability and on relevant case law. In reply, the report describes a draft Law on the protection of the rights of persons with disabilities and their social inclusion, which should prohibit discrimination on the ground of disability. According to the information provided by the representative of Armenia for the report of the Governmental Committee, the draft law has already been submitted to parliament for adoption. 

In its previous conclusion (Conclusions 2012), the Committee also asked for information on compliance with the requirement for reasonable accommodation and whether it has prompted any increase in employment of persons with disabilities on the open labour market. In reply, the report presents the Law on Employment, which came into force on 1 January 2014 and sets out measures to be taken to help persons with disabilities integrate into the labour market. Persons with disabilities without work are regarded as unemployed and have the same rights as all other unemployed persons, along with certain specific rights, namely the right to job placement under the system of compulsory job quotas and, in the event of placement, the right to support for workplace adjustment. 

The information provided does not answer the questions asked in its conclusions 2012, the Committee repeats the questions and concludes in the meantime that it has not been established that effective protection against discrimination in employment is guaranteed for persons with disabilities.

Measures to encourage the employment of persons with disabilities

In its previous conclusion (Conclusions 2012), the Committee requested updated information on any actual increase in the level of employment of persons with disabilities as a result of the various programmes and measures implemented. In the absence of a reply, the Committee reiterates its request.

The report states that, under the Law on Employment, the presence of a disability is one of the criteria for a person to be identified as being non-competitive in the labour market. The Committee takes note of the mechanism to determine whether unemployed persons are considered non-competitive in the labour market described in detail in the report. The Committee asks for information in the next report on the impact of this law on the employment of persons with disabilities.

In addition to the measures to encourage the employment of persons with disabilities referred to in the previous conclusion (Conclusions 2012), the report describes new national employment programmes funded by the state budget, which are intended to promote employment, particularly for persons with disabilities. They include a lump-sum payment in the event of job placements to acquire necessary work skills and capabilities, a financial support programme for unemployed persons with disabilities wishing to engage in self-employed activities, a programme for persons with disabilities to be placed with employers and the promotion of seasonal employment. 

The report also states that vocational training is provided for persons with disabilities as well as programmes to refresh their working skills. In 2011, 118 persons took part in these programmes and 38 were placed in a job. In 2014, 121 took part and 49 were placed in a job.

The report also describes a number of changes that were made under the annual employment programme relating to the wages of persons with disabilities on placements:

·         partial wage compensation amounting to 50% of the monthly minimum wage;

·         reduction in the compensation period from 1 to 2 years to 6 months;

·         in addition to wage compensation, employers receive a lump sum of AMD 200 000 (about €327) for each person with a disability placed with them to acquire the working skills and capabilities and compensation for the costs of adjusting their workplace to a rate approved by the authorised body;

·         financial support for persons who need a person to accompany them in an amount equal to 50% of the minimum monthly wage for a period of six months.

The report states that it is planned to apply a quota system to the public sector in 2016 and to the private sector in 2017, outside the reference period. Employers who do not comply with the quota will be required to pay a fine for each unfilled post amounting to 300 times the minimum wage, which will be paid into an extra-budgetary account. The Committee asks for detailed information in the next report on the implementation of these rules, the level of compliance with the quota and the measures taken to ensure compliance.

The report also states that one of the main aims of the National Employment Strategy concerning persons with disabilities is an annual increase in the number of persons with disabilities taking part in national employment programmes of at least 50% compared to the previous period. The Committee asks for information in the next report on the result of this strategy.

The Committee notes that according to Armenia’s initial report to the Committee on the Rights of Persons with Disabilities (2013), in 2012, 1 259 persons with disabilities were registered with the local offices of the State Employment Agency.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 15§2 of the Charter on the ground that it has not been established that persons with disabilities are guaranteed effective protection against discrimination in employment.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 3 - Integration and participation of persons with disabilities in the life of the community

The Committee takes note of the information contained in the report submitted by Armenia.

Anti-discrimination legislation and integrated approach

In its previous conclusion (Conclusions 2012), the Committee found that the situation in Armenia was not in conformity with Article 15§3 of the Charter on the ground that it had not been established that there was legislation ensuring that people with disabilities had effective protection against discrimination in the fields of housing, transport, telecommunications, culture and leisure activities. Consequently, the Committee requests information on whether there is anti-discrimination legislation in conformity with the requirements of Article 15§3 and how it is implemented, including as regards the remedies available. In reply, the report describes a draft Law on the protection of the rights of persons with disabilities and their social inclusion, which should prohibit discrimination on the ground of disability. According to the information provided by the representative of Armenia for the report of the Governmental Committee, the draft law has already been submitted to parliament for adoption. The report also refers to Article 48 of the Armenian Constitution, which states that “the main tasks of the state in the economic, social and cultural fields shall be [inter alia] … to implement programmes for the prevention and treatment of disability [and] promote the participation of persons with disabilities in the life of the community”. However, the legislative provisions, if adopted, will apply outside the reference period.

In view of the situation, the Committee asks the next report to inform it about the adoption of the law, the date of its entry into force and its implementation, including as regards the remedies available. In the meantime, the Committee concludes that, during the reference period, there was no anti-discrimination legislation to protect persons with disabilities and explicitly covering the fields of housing, transport, communications and cultural and leisure activities.

Consultation

The Committee refers to its previous conclusion (Conclusions 2012), in which it stated that a National Commission on Issues relating to Persons with Disabilities, chaired by the Minister of Labour and Social Affairs, was set up in 2008 and co-ordinates work in this field.

Forms of financial aid to increase the autonomy of persons with disabilities

The Committee found previously that the situation was in conformity with the Charter and no change is mentioned in the report.

Measures to overcome obstacles

Technical aids

The Committee found previously that the situation was in conformity with the Charter and no change is mentioned in the report.

Communication

In its previous conclusion (Conclusions 2012), the Committee asked for information on measures taken to improve access for persons with disabilities to communication and media services and on the legal status of sign language. In reply the report states that under the Law on Television and Radio, programmes must be interpreted into sign language or subtitled in Armenian. Public television and radio companies and private television companies which broadcast children’s programmes and news programmes are required to guarantee access to the deaf by broadcasting at least one children’s programme and at least one news programme every day with sign language interpretation or with Armenian subtitles.

The Committee asks again what the legal status of sign language is.

Mobility and transport

In its previous conclusion (Conclusions 2012), the Committee asked for updated information on the progress made in making transport, including rail transport, accessible to persons with disabilities. In reply, the report states that in 2014, the buses in Yerevan city centre were converted to make them accessible to persons with disabilities (through ramps or special lifting facilities). The Committee asks again whether persons with reduced mobility are entitled to special fares or required to bear the extra costs of any special facilities. It also wishes to know what measures have been taken to improve access to public transport (air, road and sea). In the absence of reply on these points, the Committee considers that it is not established that effective accessibility for people with disabilities to different means of transport is provided.

Housing

In its previous conclusion (Conclusions 2012), the Committee asked for information on how the rules on the accessibility of buildings for persons with reduced mobility are applied in practice and what remedies are available. It also asked whether financial assistance was provided to convert existing housing and for clarification on the accessibility of polling stations. In the absence of any reply, the Committee reiterates its questions and it considers that it has not been established that there is an effective access to housing.

Culture and leisure

The report refers to Article 40 of the Constitution, which states that “everyone shall have the right to freedom of literary, artistic, scientific and technical creation and the right to benefit from scientific achievements and to take part in the cultural life of the community”.

The report also states that the participation of persons with disabilities in cultural life is carried out with the active contribution of NGOs and the financial support of the state and donor organisations. The Ministry of Culture assists NGOs for persons with disabilities by providing appropriate rooms and venues.

The Committee takes note of the various events held during 2014 to promote access for persons with disabilities to cultural life and sport.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 15§3 of the Charter on the following grounds:

·         during the reference period, there was no anti-discrimination legislation to protect persons with disabilities and explicitly covering the fields of housing, transport, communications and cultural and leisure activities and

·         it has not been established that persons with disabilities have effective access to housing and transport.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 1 - Applying existing regulations in a spirit of liberality

The Committee takes note of the information contained in the report submitted by Armenia.

Work permits

The report states that the body authorised to issue work permits had not yet been accredited by the Government during the reference period. Foreign nationals therefore could work in Armenia without a work permit. The report does not answer the question put by the Committee in its previous conclusion (Conclusions 2012), namely whether temporary and permanent residence permits automatically conferred the right to engage in a gainful occupation.

The report states that in June 2015, amendments to the Law on Foreigners were adopted to set up a procedure to issue work permits. Under these amendments, employers are required to ask the authorities for permission to take on a third-party national. The Committee asks for information in the next report on the various types of work permit issued to nationals of States Parties to the Charter.

Relevant statistics

The Committee points out that in order to assess the degree of liberalism in applying existing regulations, it requires figures showing the refusal rates for work permits for both first-time and renewal applications. A high percentage of successful applications by nationals of States Parties to the Charter for work permits and for renewal of work permits and a low percentage of refusals is a clear sign that existing regulations are being applied in a spirit of liberality.

In its previous conclusion (Conclusions 2012), the Committee asked if any applications for residence permit had been rejected and, if so, for what reasons. The report fails to answer this question or provide any statistics. The Committee notes that legislative changes were made in 2015, outside the reference period, and requests that the next report indicates its impact through requested relevant statistics. The Committee asks in particular that the next report provides data on the number of work permits (first permits and renewals) granted or denied, based on the number of applications, specifically concerning nationals of States Parties to the Charter, and the grounds for refusing such requests.

Conclusion

The Committee concludes that the situation in Armenia is in conformity with Article 18§1 of the Charter.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 2 - Simplifying existing formalities and reducing dues and taxes

The Committee takes note of the information contained in the report submitted by Armenia.

Administrative formalities and time frames for obtaining the documents needed for engaging in a professional occupation

In its previous conclusion (Conclusions 2012), the Committee noted that the decision concerning the granting of temporary or permanent residence status was adopted by the Passport and Visa Department of the Government within 30 days following receipt of the necessary documents. The Committee further noted that there was no system of work permits in Armenia, something that continued to be the case during the reference period. It was not until June 2015, outside the reference period, that amendments to the Law on Foreigners were adopted, introducing a procedure for issuing work permits. According to these amendments, the employer must seek permission from the authorities in order to employ a third-country national.

The Committee asks that the next report provide information about the formalities for granting residence and work permits to nationals of States Parties to the Charter. In this connection, the Committee notes that conformity with Article 18§2 presupposes the possibility of completing formalities related to the employment of foreign workers in the country of destination as well as in the country of origin and obtaining the residence and work permits at the same time and through a single application. Article 18§2 also implies that waiting times for requisite permits (residence and work) must be reasonable.

Chancery dues and other charges

In its previous conclusion, the Committee held that the fees charged for obtaining temporary and permanent residence permits, as well as for their renewal, were high. It noted that the fees stood at €281 for a temporary permit and €321 for a permanent permit. Even though outside the reference period, the Committee notes in the report that under the amendment made to the Law on State Duty in 2015, employers will in future be charged the sum of AMD 25 000 (Armenian dram), the equivalent of €48, for obtaining a work permit for a foreign worker in the Republic of Armenia. However, the report contains no information about the fees charged for obtaining or renewing temporary or permanent residence permits during the reference period. The Committee, therefore requests that mention be made of this in the next report and points out that chancery dues and other charges for permits must not be excessive and in any event, must not exceed the administrative cost incurred in issuing them.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 3 - Liberalising regulations

The Committee takes note of the information contained in the report submitted by Armenia.

Access to the national labour market

The Committee recalls that, under Article 18§3, States Parties are required to liberalise periodically the regulations governing the employment of foreign workers in respect of access to the national labour market and that the conditions laid down for access by foreign workers to the national labour market must not be excessively restrictive.

The Committee notes that foreign nationals could be employed without a work permit in Armenia during the reference period. The report states that, in June 2015, the law on foreigners was amended to introduce a procedure for the issuance of work permits. The Committee asks that the next report stipulate the various kinds of work permits issued and the conditions laid down for access by foreign workers to the national labour market.

The Committee also requests information on the measures taken to liberalise regulations governing the recognition of foreign certificates, professional qualifications and diplomas, necessary to engage in a gainful occupation as an employee or a self-employed worker. In this connection, it wishes to know the number of cases of recognition of foreign certificates, professional qualifications or diplomas issued to nationals of States Parties to the Charter.

Exercise of the right of employment / Consequences of job loss

The Committee recalls that under Article 18§3 of the Charter loss of employment must not lead to the cancellation of the residence permit, thereby obliging the worker to leave the country as soon as possible.

In its previous conclusion (Conclusions 2012), the Committee noted that when a foreign worker loses his/her job, the residence permit is not automatically revoked, and therefore the worker is not obliged to leave the country. The report states that there have been no new developments since the Committee’s last examination of the situation.

Conclusion

The Committee concludes that the situation in Armenia is in conformity with Article 18§3 of the Charter.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 4 - Right of nationals to leave the country

The Committee takes note of the information contained in the report submitted by Armenia.

The Committee notes that there have been no changes to the situation which it has previously considered to be in conformity with the Charter.

Conclusion

The Committee concludes that the situation in Armenia is in conformity with Article 18§4 of the Charter.

Article 20 - Right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex

The Committee takes note of the information contained in the report submitted by Armenia.

Equal rights

The Committee noted previously that the Constitution, inter alia, prohibits discrimination on grounds of gender and the Labour Code further provides that gender discrimination in employment is prohibited (Conclusions 2012).

The report indicates that on 20 May 2013 the National Assembly of the Republic of Armenia adopted the “Law on ensuring equal rights and equal opportunities for women and men”, which prescribes guarantees for ensuring equal rights and equal opportunities for women and men in political, social, economic, cultural and other areas of public life and regulates the relations arising therefrom. The Committee asks for information on the amendments brought by this new law in respect to gender equality and how it is implemented into practice. It also asks whether the new legislation provides for a shift in the burden of proof in gender discrimination cases. 

The Committee previously asked whether there are occupations reserved for one sex, i.e. exceptions to the principle of equality due to genuine occupational requirements (Conclusions 2012). The report indicates that according to the legislation of Armenia, there are no jobs reserved only for one particular gender.

The Committee noted previously that persons who believe that they have been discriminated on grounds of sex in employment may take the matter before the courts. Furthermore, trade unions may act on behalf of individuals who believe that they have been discriminated against (Conclusions 2012). With regard to remedies, the Committee previously asked whether there are upper limits to the amount of compensation that may be awarded (Conclusions 2012). The report indicates that in case an employment contract has been terminated by the employer due to discrimination, the employee can be reinstated and receive compensation for the period between the termination of the contract and the moment of re-employment. The report adds that in cases when reinstatement is not possible, the employee shall be entitled to compensation in a maximum amount of 12 months’ average wage.

The Committee recalls that remedies available to victims of discrimination must be adequate, proportionate and dissuasive. Therefore, compensation for all acts of discrimination including discriminatory dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers. Any ceiling on compensation that may preclude damages from making good the loss suffered and from being sufficiently dissuasive is proscribed (Conclusions 2012, Andorra). Noting that legislation provides an upper limit to the amount of compensation, the Committee concludes that the situation is not in conformity with Article 20 of the Charter on the ground that the upper limit on the amount of compensation that may be awarded in gender discrimination cases may preclude damages from making good the loss suffered and from being sufficiently dissuasive.

The Committee noted previously that Article 178 of the Labour Code provides that equal remunerations shall be paid to men or women for the same or equal (amount of) work. The collective agreement signed in 2009 between the Government, Confederation of Labour Unions and the Association of employers requires all parties to ensure gender equality in all issues of employment, including remuneration (Conclusions 2012)

The Committee asked whether there were appropriate methods of pay comparison enabling employees to compare the respective values of different jobs, and whether pay comparisons beyond a single employer were possible (Conclusions 2012). The report indicates that there are not such methods of pay comparisons in Armenia.

The Committee recalls that it examines the right to equal pay under Article 20 and Article 4§3 of the Charter, and does so therefore every two years (under thematic group 1 “Employment, training and equal opportunities”, and thematic group 3 “Labour rights”). Usually, pay comparisons are made between persons within the same undertaking/company. However, there may be situations where, in order to be meaningful, this comparison can only be made across companies/undertakings. Therefore, the Committee requires that it be possible to make pay comparisons across companies. It notes that at the very least, legislation should require pay comparisons across companies in one or more of the following situations:

·         cases in which statutory rules apply to the working and pay conditions in more than one company;

·         cases in which several companies are covered by a collective works agreement or regulations governing the terms and conditions of employment;

·         cases in which the terms and conditions of employment are laid down centrally for more than one company within a holding (company) or conglomerate (Conclusions 2012, Statement of Interpretation on Article 20).

Considering the above mentioned, the Committee asks whether it is possible in equal pay litigation cases to make comparisons of pay between several companies which are covered by the same collective works agreement. For example, the Committee has considered that the situation complied with this principle when in equal pay cases comparison can be made with a typical worker (someone in a comparable job) in another company, provided the differences in pay can be attributed to a single source (Conclusions 2012, Netherlands) or when pay comparison is possible for employees working in a unit composed of persons who are in legally different situations if the remuneration is fixed by a collective agreement applicable to all entities of the unit (Conclusions 2014, France, Article 4§3).

Equal opportunities

The Committee takes note from the report of the statistics provided by the National Statistics Service of Armenia on the average monthly wage by economic sector, according to which in all economic sectors, the average monthly wages of women are lower than those of men. The Committee notes that in 2014 women’s average monthly wages represented 90% of men’s in agriculture, forestry and fishing; 80% in education; 62.4% in health care and social services; 65.5% in manufacturing; and 59.6% in financial and insurance activities. It further notes that women earned, overall in all occupations, around 63.7% of the men’s wage in 2012 and 65.9% in 2014.

The Committee also notes that according to the results of a study of the United Nations Population Fund (UNFPA), in Armenia women earn 35.9% less than what men are paid (“Diagnostic Study on Discrimination Against Women in Armenia 2015-2016”, UNFPA).

The Committee takes note of the measures implemented to promote gender equality described in the report. It notes the adoption of the Gender Policy Strategic Action Plan for 2011 – 2015 which includes measures to eliminate discrimination based on gender in the socio-economic field and achieve equality in employment, measures to expand women’s economic opportunities and improve their working conditions and income in rural areas, measures to enhance women’s and men’s competitiveness on the labour market and lower the level of women’s unemployment, measures to promote the entrepreneurial activities and economic initiatives of women, and measures to create favourable conditions for reconciling work with family responsibilities, including through the involvement of men in childcare. The report indicates that training sessions on gender issues are being organized for civil servants.

The Committee notes that women continue to face higher unemployment rates than men and remain concentrated in lower paying sectors and lower positions. The Committee takes note that despite the efforts and measures taken by the authorities to ensure gender equality in employment, the pay gap remains manifestly high around 35%, and therefore, the situation is not in conformity with the Charter. 

The Committee asks the next report to provide information on the situation of women in employment (by comparison with men overall and in different occupations/sectors of economy) and the wage gap between the sexes.

The Committee asks the next report to provide comprehensive information on all measures taken to eliminate de facto inequalities between men and women, including positive actions/ measures taken. It asks in particular information on their implementation and impact on combating occupational sex segregation in employment, increase women’s participation in a wider range of jobs and occupations, including decision-making positions, and to reduce the gender pay gap.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 20 of the Charter on the following grounds:

·         the limits imposed on compensatory awards in gender discrimination cases may prevent such violations from being adequately remedied and effectively prevented;

·         the unadjusted pay gap is manifestly too high.

Article 22 - Right of workers to take part in the determination and improvement of working conditions and working environment

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that the right of workers to take part in the determination and improvement of working conditions and the working environment is effective; workers’ representatives have legal remedies when their right to take part in the determination and improvement of working conditions and the working environment is not respected and sanctions exist for employers who fail to fulfill their obligations under this Article (Conclusions 2014, Armenia).

Article 22 applies to all undertakings, whether private or public. States Parties may exclude from the scope of this provision those undertakings employing less than a certain number of workers, to be determined by national legislation or practice (Conclusions 2005, Estonia).

Workers and/or their representatives (trade unions, worker’s delegates, health and safety representatives, works councils) must be granted an effective right to participate in the decision-making process and the supervision of the observance of regulations in all matters referred to in this provision, such as:

- the determination and improvement of the working conditions, work organisation and working environment;

- the protection of health and safety within the undertaking. The right of workers’ representatives to consultation at the enterprise level in matters of health and safety at the workplace is equally dealt with by Article 3 (right to safe and healthy working conditions, see supra). For the States Parties who have accepted Articles 3 and 22, this issue is examined only under Article 22;

- the organisation of social and socio-cultural services within the undertaking. The right to take part in the organisation of social and socio-cultural services and facilities only applies in undertakings where such services and facilities are planned or have already been established. Article 22 of the Charter does not require that employers offer social and socio-cultural services and facilities to their employees but requires that workers may participate in their organisation, where such services and facilities have been established (Conclusions 2007, Armenia, Italy).

Workers must have legal remedies when these rights are not respected. There must also be sanctions for employers which fail to fulfil their obligations under this Article (Conclusions 2003 Bulgaria).

According to the report where there is (are) no trade union(s) in the organisation or none of the existing trade unions unites more than half of the number of employees of the organisation, representatives (a body) can be elected by the staff meeting (conference).

The Committee asks whether undertakings employing less than a certain number of workers, are excluded from the scope of this provision.

Article 26 of the Labour Code provides that an employer shall be obliged to, inter alia, consult with the representatives of employees while making decisions that may affect the legal status of the employees and, in cases provided for by the Code, receive their consent; consider the proposals of the representatives of employees and provide answers in writing within the time limits prescribed by the Code and, where no such time limits are prescribed, not later than within one month and provide necessary information on issues concerning work to the representatives of employees.

The Committee asks where a collective agreement does not cover issues relating to working conditions, work organisation and working environment; is there an obligation on employers to consult employee representatives (or where no representatives employees directly) on related issues. Pending receipt of the information requested the Committee reserves its position on this point.

Pursuant to Article 253 of the Labour Code, the employer shall be obliged to inform and consult employees on health and safety issues.

An employer may set up a Commission for safety assurance and health of employees within the organisation, the rules of procedure have been approved by the Decision of the Government of the Republic of Armenia No. 1007-N of 29 June 2006. The Commission shall receive information from the employer about health and safety risks, provide information to employees, make proposals to the employer, provide training on health and safety, and assist in any investigation into occupational accidents.

The Commission shall meet not less than every three months.

The Committee asks when if at all, it is obligatory to establish a safety and health commission.

The Committee concludes that the situation is now in conformity with the Charter on this issue.

As regards remedies and sanctions the report states that rights protected under the Labour Code are enforceable through the courts, by employees and employee representatives. The Committee asks whether there are sanctions that may be imposed on employers who do not respect the rules relating to consultation on working conditions, working environment and work organization.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 24 - Right to protection in case of dismissal

The Committee takes note of the information contained in the report submitted by Armenia.

Scope

The Committee notes that there have been no changes to the situation which it has previously (Conclusions 2008) considered to be in conformity with the Charter. It asks for the next report to provide a full and up-to-date description of the situation.

Obligation to provide valid reasons for termination of employment

The Committee recalls that Article 24 establishes in an exhaustive manner the valid grounds on which an employer can terminate an employment relationship. Two types of grounds are considered valid, namely on the one hand those connected with the capacity or conduct of the employee and on the other hand those based on the operational requirements of the enterprise (economic reasons).

The Committee further recalls that under Article 24 dismissal of the employee at the initiative of the employer on the ground that the former has reached the normal pensionable age (age when an individual becomes entitled to a pension) will be contrary to the Charter, unless the termination is properly justified with reference to one of the valid grounds expressly established by this provision of the Charter.

The Committee observed in its 2012 conclusions that pursuant to Article 113 of the Labour Code the employers have the right to terminate employment prior to the expiry of employment contract when the employee reaches retirement age.

The Committee notes that there is no information that the situation during the reference period has changed, therefore considers that it is not in conformity with the Charter as the termination of employment prior to the expiry of employment contract at the initiative of the employer on the sole ground that employee reach the pensionable age, which is permitted by law, is not justified.

Prohibited dismissals

The Committee notes that points 3 and 7 of part 1 of Article 113 of the Labour Code of the Republic of Armenia respectively prescribe that the employer shall have the right to rescind the employment contract concluded for an indefinite time limit, as well as the employment contract concluded for a fixed time limit before the end of the validity period where by reason of insufficiency of the professional knowledge or his/her health state the employee cannot perform his or her employment duties. The Committee notes the time limit for a long-term incapacity for work (in case the employee has failed to come to work, due to temporary incapacity for work, for more than 120 consecutive days or for more than 140 days during the last twelve months unless it is prescribed by law and other regulatory legal acts that the workplace and the position are preserved for a longer period in case of certain diseases).

The Committee notes that deterioration of the health state of the employee may serve as a ground for termination of the employment contract, where it is of sustainable nature and hinders the process of work or excludes the possibility to continue it and that compatibility of the employee’s professional abilities with the assumed position or work is assessed by the employer, whereas medical and social expert assess the employee’s state of health.

The Committee recalls that under Article 24 temporary absence from work due to illness or injury is a prohibited ground for termination of employment. However, such absence can constitute a valid reason if it severely disrupts the smooth running of the undertaking. The Committee reiterates its question on what time limit is placed on protection in case of illness. In the meantime it reserves its position on this issue.

Remedies and sanctions

The Committee notes that the report states that according to the Law HO-5-N of 12 March 2014, part 2 of Article 265 has been amended and states that for economic, technological and organisational reasons, or in case of impossibility of reinstatement of future employment relations between the employer and the employee, the court does not need to reinstate the employee to his/her former position, making the employer obliged to pay compensation for the entire period of forced idleness in the amount of the average salary, prior to the entry into force of the court judgement, and pay compensation in exchange for non-reinstatement of the employee to position in the amount not less than the average monthly salary, but not more than twelve times the average monthly salary. The employment contract shall be deemed rescinded starting from the day of entry into legal force of the court judgement. The Committee asks what is meant by ’impossibility of reinstatment’.

The Committee recalls that Article 24 of the Revised Charter requires that courts or other competent bodies are able to order adequate compensation, reinstatement or other appropriate relief. Compensation in case of unlawful dismissal is considered appropriate if it includes reimbursement of financial losses incurred between the date of dismissal and the decision of the appeal body. The Committee further recalls that (Statement of interpretation on Article 8§2 and 27§3, Conclusions 2011) compensation for unlawful dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers. Any ceiling on compensation that may preclude damages from being commensurate with the loss suffered and sufficiently dissuasive are proscribed. If there is such a ceiling on compensation for pecuniary damage, the victim must be able to seek compensation for non-pecuniary damage through other legal avenues, and the courts competent for awarding compensation for pecuniary and non-pecuniary damage must decide within a reasonable time. The Committee asks whether the legislation complies with this approach and in the meantime it reserves its position on this point.

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 24 of the Charter on the ground that the termination of employment at the initiative of the employer on the sole ground that the person has reached the pensionable age, which is permitted by law, is not justified.

Article 28 - Right of workers' representatives to protection in the undertaking and facilities to be accorded to them

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Armenia in response to the conclusion that it had not been established that workers’ representatives are granted adequate protection against prejudicial/detrimental acts other than dismissal; and that facilities granted to workers’ representatives were adequate (Conclusions 2014, Armenia).

Under Article 28 protection should cover the prohibition of dismissal on the ground of being a workers’ representative and the protection against detriment in employment other than dismissal (Conclusions 2003, France).

The facilities to be provided may include for example those mentioned in the R143 Recommendation concerning protection and facilities to be afforded to workers representatives within the undertaking adopted by the ILO General Conference of 23 June 1971 (support in terms of benefits and other welfare benefits because of the time off to perform their functions, access for workers representatives or other elected representatives to all premises, where necessary, the access without any delay to the undertaking’s management board if necessary, the authorisation to regularly collect subscriptions in the undertaking, the authorization to post bills or notices in one or several places to be determined with the management board, the authorization to distribute information sheets, factsheets and other documents on general trade unions’ activities), as well as other facilities such as financial contribution to the workers’ council and the use of premises and materials for the operation of the workers’ council (Conclusions 2010, Statement of interpretation on Article 28).

The report recalls that representatives are protected against dismissal and that Article 3 of the Labour Code, prohibits, inter alia, discrimination on ground of trade union membership. However, the Committee needs more concrete information on the protection of worker representatives against detriment in employment other than dismissal.

Pursuant to part 3 of Article 175 of the Labour Code, employee representatives shall be exempt from employment duties for up to six working days per year, to attend various events organised by the employees’ representative bodies or to improve their qualifications as members of the representative bodies of employees.

The Committee takes note of this information, but in order to assess the situation still needs further information on other facilities to be afforded to worker representatives (see above).

Conclusion

The Committee concludes that the situation in Armenia is not in conformity with Article 28 of the Charter on the grounds that:

·         it has not been established that workers’ representatives are granted adequate protection against prejudicial acts other than dismissal;

·         it has not been established that facilities granted to workers’ representatives are adequate.

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

AUSTRIA

This text may be subject to editorial revision.

The role of the European Committee of Social Rights (the Committee) is to rule on the conformity of the situation in States Parties with the Revised European Social Charter (the Charter). The Committee adopts conclusions through the framework of the reporting procedure and decisions under the collective complaints procedure.

The following chapter concerns Austria, which ratified the Charter on 20 January 2011. The deadline for submitting the 4th report was 31 October 2015 and Austria submitted it on 4 November 2015.

In accordance with the reporting system adopted by the Committee of Ministers at the 1196th meeting of the Ministers’ Deputies on 2-3 April 2014, the report concerns the following provisions of the thematic group "Employment, training and equal opportunities":

·         the right to work (Article1),

·         the right to vocational guidance (Article 9),

·         the right to vocational training (Article 10),

·         the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),

·         the right to engage in a gainful occupation in the territory of other States Parties (Article 18),

·         the right of men and women to equal opportunities (Article 20),

·         the right to protection in cases of termination of employment (Article 24),

·         the right to workers to the protection of claims in the event of insolvency of the employer (Article 25).

Austria has accepted all provisions from the above-mentioned group except Articles 15§2, 18§3 and 24.

The reference period was 1 January 2011 to 31 December 2014.

In addition, the report contains also information requested by the Committee in Conclusions 2014 in respect of its findings of non-conformity due to a repeated lack of information:

·         the right to a fair remuneration – decent remuneration (Article 4§1).

The conclusions relating to Austria concern 18 situations and are as follows:

– 13 conclusions of conformity: Articles 1§1 ,1§2, 1§3, 1§4, 9, 10§1, 10§2, 10§3, 10§4, 18§1, 18§2, 18§4 and 25

– 3 conclusions of non-conformity: Articles 4§1, 10§5 and 15§1

In respect of the other 2 situations related to Articles 15§3 and 20 the Committee needs further information in order to examine the situation. The Committee considers that the absence of the information requested amounts to a breach of the reporting obligation entered into by Austria under the Charter. The Committee requests the Government to remedy this situation by providing the information in the next report.

During the current examination, the Committee noted the following positive developments:

Article 15

·         The Insurance Law Amendment Act (Versicherungsrecht-Änderungsgesetz) of 2013 introduced special protection against discrimination for people with disabilities into the Insurance Contract Act (Versicherungsvertragsgesetz).

Article 18

·         The quota system (Bundeshöchstzahl) was repealed as of 1 January 2014.

·         The Red-White-Red Card and the EU Blue Card systems were introduced in 2011, has simplified the formalities for obtaining the documents needed for engaging in a professional occupation, in that it has established a combined residence and work permit (administered through a “one-stop shop”).

Article 20

·         The legislation was amended as of 1 August 2013 to expressly address court proceedings, specifying that the awarded compensation must be effective and proportionate as well as suited to preventing discrimination.

The next report will deal with the following provisions of the thematic group "Health, social security and social protection":

·         the right to safe and healthy working conditions (Article 3),

·         the right to protection of health (Article 11),

·         the right to social security (Article 12),

·         the right to social and medical assistance (Article 13),

·         the right to benefit from social welfare services (Article 14),

·         the right of elderly persons to social protection (Article 23),

·         the right to protection against poverty and social exclusion (Article 30).

The report should also contain information requested by the Committee in Conclusions 2015 in respect of its findings of non-conformity due to a repeated lack of information:

·         the right of children and young persons to protection – special protection against physical and moral dangers (Article 7§10, 2nd ground).

The deadline for submitting that report was 31 October 2016.

Conclusions and reports are available at www.coe.int/socialcharter.

Article 1 - Right to work

Paragraph 1 - Policy of full employment

The Committee takes note of the information contained in the report submitted by Austria.

Employment situation

The real GDP growth rate fell from 2.8% in 2011 to 0.4% in 2014 thus considerably lower than the EU average rate which stood at 1.4% in 2014.

The overall employment rate remained stable at 71.1% throughout the reference period. This rate is significantly higher that the EU employment rate which stood at 64.9% in 2014.

The male employment rate remained also relatively stable decreasing from 75.5% in 2009 to 75.2% in 2014, which is still considerably higher the EU 28 average rate of 70.1% in 2014. The female employment increased slightly from 65.2% to 66.9% (EU 28: 59.6%). The employment rate of older workers increased from 39.4% to 45.1%.

The unemployment rate went up from 4.6% in 2011 to 5.6% in 2014. However, the unemployment rate is still considerably lower the average EU 28 rate of 10.2%.

The youth unemployment rate stood at 8.9% in 2011 and at 10.3% in 2014. The long-term unemployment rate (as a percentage of active population aged 15-74) remained low during the reference period. 1.2% in 2011; 1.5% in 2014.

The Committee notes that the labour market situation in Austria remained stable during the reference period despite a considerable decrease in the overall GDP growth rate.

Employment policy

Labour market policy in Austria is characterised by a close interaction between governmental and non-governmental institutions. The government involves social partners in a variety of activities devising and implementing legislation and policy measures. The general labour market goals are set out in the EU 2020 strategy which is at the national level implemented in the Public Employment Service Act.

According to the report, a variety of labour market policy measures are destined for helping vulnerable groups such as people with disabilities and young people. Persons with disabilities benefit both through individual subsidies as well as through project grants.

Special emphasis is put on young people with special needs at the transition from school to work. Youth coaching is provided to all young people with special needs. Various measures intend to promote gender equality in the labour market.

According to the report, programmes, policies and measures of active labour market policies are monitored and evaluated on a permanent basis.

According to Eurostat, public expenditure on active labour market policies in Austria amounted to 1.9% of GDP in 2011 which was slightly above the EU 28 average (where the average public spending on active labour market measures as a percentage of GDP that year was 1.8%).

The Committee considers that Labour market policies implemented in Austria result in a relatively low level of unemployment and in targeted activation policies for vulnerable groups.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 1§1 of the Charter.

Article 1 - Right to work

Paragraph 2 - Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects)

The Committee takes note of the information contained in the report submitted by Austria.

1. Prohibition of discrimination in employment

The Committee has previously examined the legal framework prohibiting discrimination in employment. It noted that the Equal Treatment Act (GIBG) covers the private sector and protects against discrimination in employment on the following grounds: gender, ethnic affiliation, religion or belief, sexual orientation and age. The Federal Equal Treatment Act (Bundes-Gleichbehandlungsgesetz, B-GlBG) covers (Federal) public employment and protects against discrimination on the following grounds: gender, ethnic affiliation, religion and belief, sexual orientation and age.

The Committee notes that the Equal Treatment Act has been subsequently amended on 1 March 2011, respectively on 1 August 2013. The report indicates that the most important amendments consist in:

·         the discrimination by association, that is discrimination of a person due to that person’s close connection with a victim of discrimination, is now prohibited;

·         the minimum compensation for harassment and sexual harassment has been increased from € 720 to € 1,000;

·         the requirement to include the minimum wage as defined in the collective agreement and information regarding the willingness to pay more than that in job advertisements;

·         confidentiality of proceedings before the Equal Treatment Commission has been lifted;

·         with respect to court proceedings, it has been expressly stated that the compensation granted must be effective and proportionate and designed to prevent discrimination.

With regard to the available remedies, the report indicates that any person who considers herself/himself a victim of discrimination may file a complaint based on the provisions of the Equal Treatment Act before a court of law. In case the principle of equal treatment is violated, compensation awarded may consist in:

·         compensation for financial losses, i.e. actual harm caused (positiver Schaden) and loss of profit; or

·         creating/restoring a discrimination-free situation and, in both cases, additionally

·         compensation for the immaterial damage and the personal impairment suffered.

The report outlines that protection from any adverse treatment or adverse consequences as a reaction to a complaint or proceedings aimed at enforcing compliance with the principle of equal treatment has been introduced as a measure to enhance protection against discrimination and applies not only to persons filing a complaint but also to other persons such as, for example, employees or witnesses supporting the complaint.

The Committee recalls that under article 1§2 of the Charter remedies available in cases of discrimination must be adequate, proportionate and dissuasive. It therefore considers that the imposition of pre-defined upper limits to compensation that may be awarded not to be in conformity with the Charter as in certain cases these may preclude damages from being awarded which are commensurate with the loss suffered and not sufficiently dissuasive to the employer (Conclusions XVIII-1). The Committee asks whether there is a ceiling/pre-defined upper limit to compensation in cases of discrimination in employment (in relation to recruitment or employment conditions in general).

The Committee takes note from the report of the competences of the two institutions dealing with issues of discrimination.

The Equal Treatment Commission established at the Federal Ministry for Education and Women’s Affairs (Bundesministerium für Bildung und Frauen, BMBF) deals with all issues related to discrimination and may prepare expert opinions and carry out case reviews. Claims for damages or performance, however, cannot be submitted to the Commission as they belong to the exclusive jurisdiction of the courts. The decisions of the Equal Treatment Commission are not binding. The Equal Treatment Commission and the courts can be addressed independently from one other. The opinions issued by the Equal Treatment Commission are published in full, yet in anonymised form, on the BMBF’s website. The report indicates that NGOs may represent an individual who is discriminated against in the proceedings before the Equal Treatment Commission. The participation of an NGO in court proceedings is ensured by way of third-party intervention.

The Equal Treatment Ombud Office established at the Federal Chancellery provides advice and support to individuals who feel they are discriminated against. The report indicates that the Act on the Equal Treatment Commission and Equal Treatment Ombuds Office Act which governs the functioning and proceedings of the two institutions has been amended during the reference period so that the proceedings before the Equal Treatment Commission were optimised (namely by fewer senate members, streamlined structure of Equal Treatment Ombud Office, enhanced arbitration function of the Equal Treatment Commission, new questioning rules in the Equal Treatment Commission).

The Committee requests updated information in the next report on the activities of the Equal Treatment Commission and of the Equal Treatment Ombud Office as well as on any judicial decisions pertaining to discrimination in employment issued by the courts with specific indications regarding their nature and outcome, and compensation paid to the employees.

With regard to discrimination on grounds of nationality, the Committee previously concluded that the situation was not in conformity with the Charter on the ground that during the reference period Section 8§2 of the Aliens Employment Act required employers to make foreign workers redundant first when reducing manpower or to avoid having to reduce the working hours of all employees (Conclusions 2012).

The Committee took note that Section 8§2 of the Aliens Employment Act was repealed in 2011, which was outside the reference period corresponding to the previous Conclusion. The current report confirms that Section 8§2 of the Aliens Employment Act was repealed as of 30 June 2011 in order to meet the requirements of the European Social Charter on the one hand, and on the other hand of the Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, which – among other things – sets forth the express principle of equal treatment as regards conditions of employment and working conditions, including conditions regarding the termination of employment relationships. The Committee takes note of these changes in the legislation and therefore concludes that the situation is now in conformity with the Charter on this point.

The Committee asks the next report to provide information on any concrete positive measures/actions taken or envisaged to promote equality in employment and to combat all forms of discrimination in employment.

2. Prohibition of forced labour

Work of prisoners

The Committee notes from the report that Section 44 of the Penal Execution Act that all persons detained in prison who are able to work are obliged to do so. They are not allowed to perform any life-threatening work or work involving severe health hazards. In reply to the question asked by the Committee (Conclusions XX-1/2012), the report specifies that prisoners who have an accident at work that was not intentionally caused by themselves are entitled to accident insurance care in addition to the provisions on medical care specified (Section 76). During the period of detention, all inmates are entitled to healthcare even if they intentionally contract diseases or cause injuries to themselves, with the federal government having to cover the costs given the absence of conventional health insurance (Section 66 et seq. of the afore-mentioned law).

In July 2014, a total of 357 businesses were operating in the 27 Austrian prisons. The workers’ protection provisions applicable to private enterprises also apply to businesses inside penal institutions. The remuneration for inmates is modelled on the remuneration specified in the collective agreement for metal workers and is based on the minimum wage index calculated by Statistics Austria. The average wage of prisoners released in 2013 was €4.85 per day, after deduction of law enforcement costs and unemployment insurance contributions.

The general requirements for the protection of life, health and physical safety apply to both public and private sector employees (Section 49 of the Penal Execution Act). Employees of the company may professionally supervise the prisoners but have no disciplinary authority whatsoever. Only law enforcement staff are responsible for supervising prisoners.

Domestic work

The report reiterates information that was provided in the previous evaluation cycle, namely that Section 104 of the Criminal Code forbids the five following forms of exploitation: sexual exploitation, removal of organs, exploitation of labour, exploitation through forced begging and exploitation through forced commitment of punishable acts. Human trafficking for the purpose of domestic exploitation is considered to be exploitation of labour.

The Committee notes from the report that an assessment of the legal situation in Austria with regard to compliance with ILO Convention No. 189 on domestic work has shown that there are some gaps or an absence of legislative provisions with regard to the recruitment of domestic employees from abroad (Article 8§1 of the Convention), payment of costs for repatriation of domestic workers to their home country following expiry or termination of the employment contract (Article 8§4 of the Convention), working hours (weekly working hours need to be reduced and the weekly rest period needs to be extended – Articles 10§§1 and 2 de la Convention) and adequate supervision of working conditions through the establishment of measures for labour inspection (Articles 17§§2 and 3 of the Convention). The Committee notes with regard to the inspection of the homes of individuals who have domestic employees, the Code of Criminal Procedure authorises such house searches provided they are ordered by the public prosecutor following a court’s approval (Section 120§1 of the Code), if certain facts give rise to the assumption that a person suspected of a criminal offence is hiding there, or if evidence of such an offence may be found there (Section 119§1 of the Criminal Code) This concerns the criminal offences of slavery and people trafficking (Section 104 (a) of the Criminal Code). Aside from this, the law as it stands does not permit inspections relating to observance of the rights of workers to be carried out in the homes of private individuals. Moreover migrant workers recruited in Austria do not currently have the right to a job offer or enforceable contract of employment.

Following a number of meetings with the social partners since autumn 2012, draft legislation was drawn up in 2015 to overcome all current obstacles to ratification of ILO Convention No. 189. It should be enacted in 2016.

The report states that access to the Austrian labour market is essentially restricted to highly qualified skilled workers in areas where there is a shortage of skilled labour and to key employees. Job-seekers must obtain a ‘Red White Red” (RWR) card to be able to sign a contract of employment. Such a card is not issued for domestic work as it is a low-skilled occupation. Accordingly, domestic workers employed in Austria are mostly EU citizens, who have free access to the labour market. There are also au pairs, who are covered by the Domestic Help and Domestic Employees Act (Hausgehilfen- und Hausangestelltengesetz). Employers of young au pairs from third countries must declare such employment to the Public Employment Department (AMS) and must also submit a contract of employment. The enforceability of such contracts of employment is the same as for employees generally. The Employment of Foreigners Act (Ausländerbeschäftigungsgesetz) also provides for an exemption for staff at diplomatic missions, and no labour permit is therefore required for workers employed in the households of embassy employees, which means that the AMS cannot carry out any advance checks on the employment contracts of such workers.

Since the previous evaluation cycle, Austria has organized events for domestic workers employed in diplomatic households in 2013 and 2015 to inform them about their rights regarding wages, working hours and other job conditions. As it is host to a number of international organisations and a large diplomatic community, Austria co-operates with other countries at bilateral and multilateral level, for example within the OSCE in drawing attention to this issue and strengthening international co-operation.

The Committee takes note of the information provided and asks that the next report contain updated information on the enactment of the aforementioned law and the measures taken to monitor its application (General questions of the Committee, Conclusions 2012).

3. Other aspects of the right to earn one’s living in an occupation freely entered upon

Minimum periods of service in the Armed Forces

The Committee notes from the report that in Austria it is compulsory to serve in the armed forces for at least six months (basic service). Anyone who objects to compulsory military service on grounds of conscience and is exempted has to do nine months of alternative civil service. Persons doing alternative civil service must be employed in services which are either for the benefit of civilian national defence or in the public interest and which require a similar commitment from them as expected of persons doing compulsory military service.

Military service can be completed with the Austrian Armed Forces, either in the form of national service (Präsenzdienst), national training service (Ausbildung Dienst) or in the framework of an employment relationship. In the two latter cases, military service can be terminated by the soldiers at any time (resignation or termination). However, where active service is concerned, termination of service following an application to resign only becomes effective upon completion of the mission.

The Committee notes that the Austrian Defence Act (Wehrgesetz, WG) provides for 5 types of compulsory service in the armed forces. It also takes note of the information concerning the duration of the different types of service in the armed forces and the measures that may be applied in extraordinary circumstances.

It asks that the next report provide information on the impact of studies or training courses followed by soldiers on the duration of their service in the armed forces and on the possible financial repercussions of early termination of service.

Requirement to accept the offer of a job or training

According to the report, in Austria unemployed workers are entitled to welfare benefits in the form of unemployment benefit and unemployment assistance. In order to receive such benefits they must accept the offer of a suitable job or take part in skills-improvement or vocational retraining programmes. A job is considered reasonably suitable if it suits the job-seeker’s capabilities and corresponds to the standards defined in legislation and collective agreements. During the first 100 days on unemployment benefits, unemployed workers are entitled to placement in their former occupation and vacancies offered must not differ greatly from that occupation.

Unemployment assistance, which is payable on exhaustion of unemployment benefit, combines the principles of social insurance and welfare. In order to receive such assistance, the beneficiaries must prove that they are willing and able to work. Unemployment assistance is, as a rule, granted for a maximum of 52 weeks. However, it continues to be paid as long as the person continues to have serious financial difficulties.

If claimants refuse or ignore opportunities by failing to accept jobs or to actively participate in training programmes, penalties may be applied in the form of the suspension of their unemployment benefits for six weeks, and in repeat cases for eight weeks. As a consequence, the duration of benefit entitlement is reduced by six or eight weeks. If someone becomes unemployed through their own fault, their unemployment benefit or assistance may be suspended for four weeks, in other words such benefits will only be paid four weeks after they have lost their job.

The Committee considers that in all cases in which the relevant authorities decide on the permanent withdrawal or temporary suspension of unemployment benefit because the recipient has rejected a job offer, this decision must be open to review by the courts in accordance with the rules and procedures established under the legislation of the State which took the decision (Statement of interpretation on Article 1§2, Conclusions 2012). It asks that the next report provide relevant information on this point. The Committee points out that if the information is not provided in the next report, there will be nothing to establish that the situation is in conformity with Article 1§2 of the Charter regarding the obligation to accept a job offer or training, or lose unemployment benefits.

Privacy at work

The report states that the employer’s duty of care is stipulated in Section 18 of the Austrian Salaried Employees Act (Angestelltengesetz, AngG) and in Section 1157 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). To meet the duty of care, the employer must not only offer working conditions which protect the life and health of employees in the best possible way but also respect employees’ other material and non-material interests and personal rights, such as the protection of privacy. In the event of non-compliance with this obligation, employees may lodge a claim against the employer and seek compensation. Employees who wish to leave the company as a result of a violation of privacy may terminate the employment relationship or announce their premature resignation provided that their decision is based on pertinent grounds, invoking a health risk if work is continued or violation of morality vis-à-vis the employee (Section 26 AngG and Section 82a of the Industrial Code).

Pending receipt of the information requested, the Committee considers that with regard to the prohibition of forced labour and the other aspects of the right to earn one’s living in an occupation freely entered upon, the situation is in conformity. It asks that the next reports continue to provide information on developments in the de jureand de facto situation with regard to these different aspects.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Austria is in conformity with Article 1§2 of the Charter.

Article 1 - Right to work

Paragraph 3 - Free placement services

The Committee takes note of the information contained in the report submitted by Austria.

The 2014 Report of the Performance of the Public Employment Service (AMS) (http://www.ams.at/_docs/001_gb_2014_kurzbericht_en.pdf) indicates that the unemployment rate in Austria was 5.6%, the second lowest unemployment rate across the European Union (EU 28) after Germany (the unemployment rate for the 28 EU states was 10.2%).

The Committee notes from the above-mentioned report that AMS is divided into one federal, nine regional and 104 local organisations. In reply to the Committee’s request the report confirms that all services provided by AMS remain free of charge.

In 2014, the number of vacancies notified to AMS was 436,500 and the number of placements by AMS was 369,000. It results a placement rate of 84,5% which is one of the highest rates among the Member States of the Charter.

AMS succeded every 72 seconds in acquiring a new vacancy (including apprenticeship placements). Around 273,000 CVs of customers were electronically stored by AMS, corresponding to nearly 1,100 jobseeker CVs per working day. At the end of December 2014, 5,766 staff were at the service of job-seekers and enterprises. Annual average staff deployment is 5,068 full-time equivalents, assisting around 980,000 job and apprenticeship seekers as well as around 67,200 businesses at 104 local offices across all federal provinces.

As indicated in the report, AMS market share (share of vacancies filled by AMS assistance in all newly created employments) in 2014 was around 36.3%, slightly higher compared to the previous year. The report does not provide the market share of private recruitment agencies which are fully operational in Austria. In this connection, the Committee asks the next report to provide information on the co-ordination between the work of private agencies and that of the public employment service and indicate the market share of private services.

The report also indicates that the social partners are fully involved at all levels and make a considerable contribution in forming labour market policy and organisational controlling in the board of governors, the provincial directorates and regional advisory councils.

Having regard to the information provided, the Committee considers that the public employment services in Austria satisfy the criteria of free and effectiveness in practice as required by Article 1§3 of the Charter.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 1§3 of the Charter.

Article 1 - Right to work

Paragraph 4 - Vocational guidance, training and rehabilitation

The Committee takes note of the information contained in the report submitted by Austria.

As Austria has accepted Article 9, 10§3 and 15§1 of the Charter, measures relating to vocational guidance, to vocational training and retraining of workers, and to vocational guidance and training for persons with disabilities are examined under these provisions.

The Committee considered the situation to be in conformity with the Charter as regards measures relating to vocational guidance (Article 9) and vocational training and retraining of workers (Article 10§3).

It considered however that the situation was not in conformity with Article 15§1 of the Charter on the ground that the right of persons with disabilities to mainstream education is not effectively guaranteed. Since this ground does not concern vocational training, it is not relevant under Article 1§4 (Conclusions 2008, Statement of interpretation on Article 1§4).

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 1§4 of the Charter.

Article 4 - Right to a fair remuneration

Paragraph 1 - Decent remuneration

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Austria in response to the conclusion that it had not been established that the lowest wage paid was sufficient to ensure a decent standard of living (Conclusions 2014, Austria). In this respect it also notes the comments of the Federal Chamber of Labour (BAK) and the Austrian Economic Chamber (WKÖ).

Article 4§1 guarantees the right to a fair remuneration such as to ensure a decent standard of living. The concept of “decent standard of living” goes beyond merely material basic necessities such as food, clothing and housing, and includes resources necessary to participate in cultural, educational and social activities (Conclusions 2010, Statement of Interpretation on Article 4§1). To be considered fair within the meaning of Article 4§1, the minimum or lowest net remuneration or wage paid in the labour market must not fall below 60% of the net average wage. The assessment is based on net amounts, i.e. after deduction of taxes and social security contributions.The net national average wage is that of a full-time worker and calculated with reference to the labour market as a whole. If the lowest wage does not fall very far below the established threshold (in practice between 50% and 60%), the State Party will be invited to provide detailed evidence that the lowest wage is sufficient to give the worker a decent living standard even if it is below the threshold.

The report firstly refers to the net value of the average wage of manual workers (Arbeiter und Arbeiterinnen) which was € 22,484 in 2013 (according to Statistik Austria it increased to € 22,777 in 2014). In this respect the Committee wishes to point out that the reference wage for its assessment under Article 4§1 should not be restricted to manual workers, but should refer to all full-time wage earners (dependent workers) in the labour market as a whole (cf. Conclusions XIV-2 (1998), Statement of interpretation on Article 4§1). The Committee will therefore take into account the data available from Statistik Austria on all dependent employees (Unselbständig Erwerbstätige). It notes that the average annual wage for this group was € 30,616 in 2013 and € 30,959 in 2014. The report does not provide explicit information on the monthly average wage, but the aforementioned 2014 annual amount for all dependent employees (based on social security data) corresponds to a net average monthly wage of € 2,580. Statistik Austria also publishes a net monthly average for full time employees based on micro-census data which estimates the average net monthly wage at € 2,333 in 2014.

The report provides little information on the lowest wages paid in the labour market. It reiterates information previously noted by the Committee according to which approximately 98% of Austrian employees are covered by collective agreements and indicates that the lowest wage rates foreseen by these agreements range between € 1,200 and € 1,400 monthly (as of March 2015). The Committee assumes that these amounts are gross, i.e. before deduction of contributions and taxes. It asks that the next report confirm this understanding and provide estimates of the net value of the lowest wages provided for by collective agreement.

Nevertheless, the Committee notes that a gross monthly wage of € 1,200 corresponds to only about 51% of the net average monthly wage based on micro-census data and to about 47% of net average monthly wage based on social security data. The Committee can only assume that the percentages would have been even lower if the lowest wage rates had been indicated net of contributions and taxes. Thus, the lowest wages fall well below the threshold established by the Committee.

The Committee notes the information on transfer payments which according to the report play a major role for the actual income situation of employees and their households and should be seen as an instrument of redistribution. While acknowledging that the existence transfer payments may to some extent inform the Committee’s assessment of compliance with Article 4§1, especially when the lowest wage levels are very close to the 60% threshold, the Committee notes that the transfer payments referred to predominantly concerns children and families with children and do not necessarily benefit all workers on the lowest wages. As regards tax breaks and the announced tax reforms (and relief from social security contributions) to ease the burden on low-income earners the Committee refers to its question above on the net value of the lowest wages, i.e. on the impact of contributions and taxes on these wages. It also wishes to receive information any reforms actually adopted in this respect.

On the basis of the information at its disposal, the Committee considers that the lowest wages are too low to meet the requirements of the Charter.

Finally, the Committee takes note of the explanation regarding Article 1152 of the General Civil Code which provides for "appropriate remuneration" where the employer is not bound by any existing collective agreement. According to the case law of Austrian Supreme Court (OGH) in such cases an appropriate wage has to be determined on the basis of collective agreements for comparable activities, with factors such as wage levels in the geographical area (neighbouring towns), the size of the enterprise and the number of employees being also taken into account. In principle, the Committee considers this modus operandi to be reasonable and acceptable under Article 4§1, however in order to assess the situation properly it needs to receive information, including examples, on the lowest wages actually paid to full-time workers not covered by collective agreement. It asks that this information be contained in the next report.

Conclusion

The Committee concludes that the situation in Austria is not in conformity with Article 4§1 of the Charter on the ground that the lowest wages paid are too low to ensure a decent standard of living for all workers.

Article 9 - Right to vocational guidance

The Committee takes note of the information contained in the report submitted by Austria.

As regards measures concerning vocational guidance of people with disabilities, both within the education system and the labour market, the Committee refers to its assessment under Article 15 of the Charter.

Vocational guidance within the education system

The Committee previously took note of the many and diverse orientation services offered to students in the field of education and occupation (see Conclusions XX-1 (2012)). It noted that all initiatives in this field were based on a national policy for the development and improvement of coordination of different services, with the objective of systematically supporting the educational and vocational decision-making processes, especially two years before graduation and/or transition.

It also noted that such counselling services are free and available to all students, irrespective of their nationality.

In addition, the report indicates that from the ninth year of schooling on, the Service Centre of the Ministry of Social Affairs also provides youth coaches within schools to support successful transition from school into working life for all students at risk of early school leaving. Prior to graduation and transfer from one school type to another, comprehensive information, counselling and guidance is available at schools. The report refers in this respect in particular to the Catalogue of mandatory measures concerning information, counselling and guidance for grades seven and eight (http://www.bmbf.gv.at/ibobb) and to the Initiative "18plus – Work and Study Checker" for the transition from secondary to tertiary education (http://www.18plus.at).

In response to the Committee’s question concerning the budgetary and human resources allocated to vocational guidance in the education system and the number of beneficiaries, the report indicates that during the 2013/14 academic year, support was provided to over 86 000 seventh and eighth-grade students throughout Austria, an increase of 18% over the 2012/13 academic year. However, the report points out that as information, counselling and guidance for education and work are integrated into overall instruction, it is difficult to identify, out of the global budget for education, the costs specifically related to guidance. The report present nevertheless some data concerning the number of educational and vocational guidance counsellors (psychologists and school and educational counsellors) in the education system, which remained largely constant between 2011 and 2014, as well as the estimated staff costs, which do not include however the expenditure on youth coaches and teaching activites. The Committee takes note of the information provided and asks that updated information be regularly provided on expenditure and staffing in the next reports.

Vocational guidance in the labour market

The Committee refers to its previous conclusion (Conclusions XX-1 (2012)), where it took note of the counselling, information and guidance services which are offered free of charge to both employed and unemployed persons by the Public Employment Service pursuant to the 1994 Public Employment Service Act (Arbeitsmarktservicegesetz), as amended. These services are in particular offered through the Vocational Information Centres (Berufsinformationszentren, BIZ) all over Austria. According to the report, the BIZ advisors provide research support, organise events and workshops, provide educational and vocational guidance for people of all ages and respond to queries by telephone and in writing. All services are provided impartially, free of charge and, where desired, anonymously.

The Committee takes note of the information provided in the report on the guidance services offered by BIZ to accompany young people in the transition from school to work and to adults wishing to embark on a new career or change career direction. The report specifies that this information is not only available through personal guidance, but also through collections of documents (videos and brochures). Furthermore, an extensive online offer exists, including a careers test, information on current labour market trends, an apprenticeship vacancies site and a continuing vocational training database, available 24 hours a day.

The report also describes the numerous online ressources managed by the Public Employment Service and available to anyone. They include: a website (www.ams.at/karrierekompass), which contains information on careers/occupations, education and training opportunities and labour market trends, data and research; the "Careers lexicon" website (www.ams.at/berufslexikon), which provides clear information on almost 1800 occupations as well as on jobs activities, employment prospects and education and training options for these occupations; the AMS’s "Qualification Barometer" which provides information on the qualifications and professions with particularly good prospects (that is, where there are the most job vacancies) and the employment trends in each field of work; the AMS "Job Compass" website (AMS-Berufskompass) providing career-tests aimed inter alia at specifc target groups (young people under the age of 16 on the one hand, workers looking for a career change on the other hand); the AMS’s "Career Information System", a database of occupations, and the related training/qualifications required, pay, etc.; the "Application Portal" (www.ams.at/bewerbung) which provides guidance on every stage of the application process; the AMS’s "Youth Platform" (Jugendplattform – www.arbeitszimmer.cc) which provides information on all aspects of choosing a school, career or university course, including company apprenticeship vacancies.

As regards the spending, staffing numbers and number of beneficiaries of vocational guidance on the labour market, the report indicates that in 2014, a total of around 500,000 young people and adults used the information available in the AMS’s 68 Vocational Information Centres. Around 140 permanent positions are allocated to provision of these services at the AMS’s Vocational Information Centres. Due to the high degree of integration between the services provided by the Public Employment Service, and despite the fact that services were primarily expanded in the area of career choice support (e.g. Vocational Information Centres), a reliable assessment of the total costs and capacities spent in this area is however very difficult, according to the report. The Committee takes note of the information provided and asks that updated information be regularly provided on beneficiaries, expenditure and staffing in the next reports.

In response to the Committee’s question concerning access of non-EU nationals to vocational guidance in the labour market, the report confirms that anyone interested – independently of nationality, length of residence or employment conditions – can obtain information and advice on occupations, job prospects, labour market trends and education and further training from specially trained counsellors at the AMS’s Vocational Centres. In addition, anybody can access the online guidance ressources mentioned above. The Committee finds that the situation is in conformity with Article 9 in this respect.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 9 of the Charter.

Article 10 - Right to vocational training

Paragraph 1 - Technical and vocational training; access to higher technical and university education

The Committee takes note of the information contained in the report submitted by Austria.

Secondary and higher education

The Committee notes from the report that technical and vocational schools and colleges pave the way for the transition from compulsory education to the world of employment. By means of not just offering basic vocational training but also more sound and specialised courses, technical and vocational schools provide for training in various fields and for various occupations. Post-secondary courses provide short study programmes for people holding standard entry qualifications for university. These courses run for four or eight semesters, impart technical and practical qualifications to be acquired at technical and vocational colleges and end with a diploma exam. Access to advanced vocational education is conditional upon standard entry qualifications for university. Successful completion of professional university (fachhochschul) courses gives access to doctoral programmes at university.

Apart from imparting sound technical know-how as well as instructing students about the legal framework, secondary schools for occupations in the social services sector also foster the development of the individual student’s personality as well as his/her social skills and understanding of organisational structures.

The Committee recalls that Article 10§1 covers all forms of higher education. In view of the current evolution of national systems, which consists in the blurring of the boundaries between education and training at all levels within the dimension of lifelong learning, the Committee considers that, today, the notion of vocational training of Article 10§1 covers initial training, i.e. general and vocational secondary education, university and non-university higher education, and continuing training. University and non-university higher education are considered to be vocational training as far as they provide students with the knowledge and skills necessary to exercise a profession.

The Committee asks what measures are taken to make general secondary education and general higher education qualifications relevant from the perspective of professional integration in the job market.

Measures to facilitate access to education and their effectiveness

In its previous conclusion the Committee found that the situation was not in conformity with the Charter as nationals of States Parties who are not nationals of the European Economic Area and are lawfully resident or regularly working in Austria are granted access to university education only subject to the availability of places.

The Committee notes from the report in this respect that from winter semester 2013/2014 a new study place limitation and admission process for all students independent of nationality has been implemented in some fields of studies. All applicants for a university place have to fulfil the general and the study related admission requirements prescribed by law, for instance the possession of a special university entrance qualification required for the degree program selected, a sufficient knowledge of German, and – where entrance examinations are stipulated – all students will have to pass these qualifying examinations. According to the report, this system guarantees equality of treatment with respect to access to university education to every applicant, including nationals of State Parties who are not nationals of the EEA.

The Committee considers that the situation has been brought into conformity with the Charter on this point.

The Committee notes from the report that in 2010 the total expenditure on all levels of education combined amounted to 5,8% of GDP. The Committee asks the next report to provide updated information in this respect, with a special regard to vocational education.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 10§1 of the Charter.

Article 10 - Right to vocational training

Paragraph 2 - Apprenticeship

The Committee takes note of the information contained in the report submitted by Austria.

According to the report, the Austrian dual system of vocational education and training is characterised by the combination of practice-oriented training provided at the enterprise and the teaching of subject-related theoretical know-how, general education and key skills at the part-time vocational school. The enterprise-based part of dual vocational training makes up approximately 80% of the apprenticeship-period. Training in an apprenticeship lasts between two and four years. About 40% of young people per year undergo an apprenticeship training. Approximately 35,000 enterprises are open as training sites.

The apprenticeship contract is entered into between the authorised apprenticeship trainer and the apprentice. It must be concluded in writing and has to be registered by the Apprenticeship Office in case it is correlating with the Vocational Training Act.

The Committee notes that the reforms of the dual system are aiming at an increased integration of economic and technological innovations and at motivating companies to invest in existing and to create new vacancies for apprentices.

At 31 December 2014 there were about 115,068 apprentices, of whom approximately 9,000 are doing a supra-company apprenticeship. There exist a wide range of subsidies to company-based apprenticeships. The youngsters usually search for an apprenticeship positions themselves or with the help of the Public Employment Service (AMS) and apply directly to the company. 11,299 young people found a regular apprenticeship in a company with the support of the AMS. Apprenticeship promotion funding was paid to companies in respect of 9,751 apprenticeships, for a total expenditure of €27,9 million.

According to the report, due to the current labour market situation, active labour market policy measures for those seeking apprenticeships continued at a high level.

In 2014, the AMS spent around €125 million for apprenticeships for young people. This figure includes subsistence allowances and apprenticeship pay.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 10§2 of the Charter.

Article 10 - Right to vocational training

Paragraph 3 - Vocational training and retraining of adult workers

The Committee takes note of the information contained in the report submitted by Austria.

Employed persons

According to the report, adult education is under the responsibility of the Federal Ministry for Education and Women’s Affairs (BMBF). It is provided by a variety of educational institutions pursuing a range of objectives and offering various education programmes. To ensure participation in and successful completion of such courses, it is essential that programmes offered are suitable for adult learners and appropriate for the relevant target groups and that high-quality educational and vocational guidance is available. The BMBF provides funding for associations and institutions in the field of adult education.

The Federal Institute for Adult Education (Bundesinstitut für Erwachsenenbildung, BIFEB) is an innovative participant in national and international networks and projects and a training centre for everyone working in the adult education field.

Moreover, the European Social Fund (ESF) subsidises projects in the adult education field aimed at sustainable integration of disadvantaged adults into society, education and the labour market, dismantling of barriers and securing of equal opportunities, and professionalisation and quality development. ESF funding expired at the end of 2014. A successor instrument, the purely national instrument "Funding of training for employees" (Qualifizierungsförderung für Beschäftigte, QBN), is now available instead. This programme lays down rules for the funding of companies which carry out skills training measures for one or more employees.

The federal guidelines for the Public Employment Service (AMS) for 2013-2014 specify rules for funding of training measures provided for one or more employees within individual companies, training measures carried out within training networks, and training measures carried out in connection with temporarily reduced working hours. The grants provided are intended to finance the costs incurred by companies in implementing training measures for employees. The funding makes it easier for employers to provide training, on the one hand, while securing employment and preserving jobs by improving skills, on the other. Provided that the training is directed towards one of the AMS’s predefined labour policy objectives, funding may be provided in respect of employees under the age of 45 who have no qualifications beyond compulsory schooling.

Unemployed persons

The Committee notes that a total of 319,357 individuals were unemployed on average in 2014, and of these 148,742 persons (46.6%) had completed compulsory school as the highest level of education. 33.1% had completed apprenticeship training at most.

According to the report, skills development programmes for the unemployed available via the AMS include courses on active job seeking, careers guidance, education and further training and other training courses. 251,552 unemployed persons took advantage of these training measures and external courses. Spending, excluding incidental course costs, subsistence allowances, etc., totalled € 497 million.

For the New Skills programme of the AMS industry professionals from innovative leading companies and labour market and education experts have designed model curricula in selected fields of work for the purpose of enabling unemployed persons to acquire practical skills in line with their needs. 11,460 jobseekers participated in skills training activities in various fields of work under the "New Skills" programme in 2014. € 11 million were spent on this training.

Total spending by the AMS on labour market funding measures in 2014, including payments from the unemployment insurance fund in respect of reductions of working hours, was € 1,124.90 million.

In total, 380,807 individuals were newly included in labour market promotion schemes.

The proportion of all affected unemployed persons included in a support programme was 38.2%. Typical groups targeted by the AMS are young people experiencing difficulty entering the labour market, individuals without qualifications or with qualifications which are non-marketable or outdated, women returning to the labour market, individuals with health-related impediments to employment, older people and workers affected by structural change and at risk of job loss.

The Committee asks each national report to provide information about the activation rate – i.e. the ratio between the annual average number of previously unemployed participants in active measures divided by the number of registered unemployed persons and participants in active measures.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 10§3 of the Charter.

Article 10 - Right to vocational training

Paragraph 4 - Long term unemployed persons

The Committee takes note of the information contained in the report submitted by Austria.

The Committee notes that in Austria long-term unemployed are persons who have been unemployed for at least 12 months.

The report indicates that the current strategy of the Public Employment Service (AMS) provides for timely action to prevent lengthy absences from the labour market.

In this context, the report refers to available instruments to promote employment such as: a) integration subsidies that are funding provided for a limited period to cover a proportion of the wage and non-wage labour costs of employing staff in roles subject to full social security contributions; b) the combined wage subsidy that is an additional incentive to jobseekers to accept low-paid or part-time work; c) non-profit employment projects that are non-profit organisations providing temporary project jobs in non-profit employment fields; d) socio-economic companies that are service companies, which offer temporary jobs to the unemployed.

The report mentions, as well, that, advice and support facilities are provided for the long-term unemployed, in particular, careers guidance and exploration of personal professional potential through a personalised support. Furthermore, training is carried out through the Centres for Vocational Education and Rehabilitation that are a particularly important partner to the AMS.

The report indicates that the number of long-term unemployed persons that beneficiated through the different instruments to promote employment is as follows:

·         14,358 long-term unemployed persons found employment in the labour market with the support of integration subsidies during 2014 (up 16.0% from the previous year);

·         6,192 long term unemployed persons in 2014, were paid the combined wage subsidy (62.6% of all beneficiaries of the combined wage subsidy during the year);

·         8,872 long term unemployed persons engaged in funded employment in a socio-integrative enterprise (socio-economic company or non-profit employment project) in 2014, (14.7% more than in 2013);

·         17,147 long-term unemployed persons worked under the non-profit temporary agency work scheme in 2014 (12.8% more than in 2013);

·         34,525 long-term unemployed persons in 2014, were given advice and support facilities by AMS (36.9% more than in 2013).

The Committee asks the next report to indicate types of trainings given to young long-term unemployed and the number of participants in these trainings.

Lastly, Article 10§4 requires equality of treatment for nationals of other States Parties lawfully resident in Austria as regards training for the long-term unemployed. Under Article 1§2, the current report confirms that Section 8§2 of the Aliens Employment Act was repealed as of 30 June 2011 in order to meet the requirements of the European Social Charter on the one hand, and on the other hand of the Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, which – among other things – sets forth the express principle of equal treatment as regards conditions of employment and working conditions. However, the Committee asks that the next report contains information whether equal treatment with respect to access to training and retraining for long-term unemployed persons is guaranteed to nationals of other States Parties lawfully resident in Austria on the basis of the conditions mentioned under Article 10§1.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 10§4 of the Charter.

Article 10 - Right to vocational training

Paragraph 5 - Full use of facilities available

The Committee takes note of the information contained in the report submitted by Austria.

Fees and financial assistance

In its previous conclusions on Article 10§4 (Conclusions XVI-2, XVIII-2, XIX-1 and XX-1) the Committee found that the situation was not in conformity with Article 10§4 of the Charter on the ground that equal treatment of nationals of other States Parties residing or working lawfully in Austria was not guaranteed – and reciprocal agreements were required – with regard to fees and to financial assistance for training. In particular, the nationals of States Parties (other than EEA) enjoy the same legal position as Austrian nationals after having resided in Austria for at least five years. A national of these countries will enjoy the same legal treatment as an Austrian citizen (in terms of eligibility to financial assistance for education) only when at least one parent was liable to pay income taxes in Austria for a least five years and had the centre of his/her vital interests in Austria. According to the report, the reason is to ensure that only those non-Austrians who have established a minimum relationship with Austria will enjoy this benefit.

The Committee notes from the report in this regard that in accordance with the School Grants Act 1983 (Schülerbeihilfengesetz), third-country nationals are entitled to educational grants insofar as they are so entitled as a result of the Agreement on the European Economic Area (EEA) and the Treaty establishing the European Community.

The report states that Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents provides that third-country nationals who are long-term residents are entitled to equal treatment as regards study grants. Under this Directive, the status of long-term resident is normally acquired after five years’ residence in the territory of an EU Member State (Article 4.1), subject to more favourable provisions (Article 3.3) of, among others, the European Social Charter.

However, according to the report, as the European Social Charter is not directly applicable in Austria (as defined in Article 50 Para. 2 of the Federal Constitutional Act (Bundes-Verfassungsgesetz), compliance with the Charter must be by enactment of laws) it is not a more favourable provision for the purpose of the Directive if not transposed into national law.

The Committee considers that no matter what the status of the Charter may be in the domestic law, Austria is bound by its provisions as a State Party.

The Committee recalls that under Article 10§5 of the Charter equality of treatment as regards access to financial assistance for studies shall be provided to nationals of other States Parties lawfully resident in any capacity, or having authority to reside by reason of their ties with persons lawfully residing, in the territory of the Party concerned. Students and trainees, who, without having the above-mentioned ties, entered the territory with the sole purpose of attending training are not concerned by this provision of the Charter. Article 10§5 does not require the States Parties to grant financial aid to any foreign national who is not already resident in the State Party concerned, on an equal footing with its nationals. However, it requires that nationals of other States Parties who already have a resident status in the State Party concerned, receive equal treatment with nationals in the matters of both access to vocational education (Article 10§1) and financial aid for education (Article 10§5).

Those States Parties who impose a permanent residence requirement or any length of residence requirement on nationals of other States Parties in order for them to apply for financial aid for vocational education and training are in breach of the Charter.

The Committee considers that the situation which it has previously found not to be in conformity with the Charter has not changed. Non-EEA nationals are subject to a length of residence requirement of five years to be eligible for financial assistance for training. Therefore, the situation is not in conformity with the Charter.

According to the report, in 2014/20115 academic year the number of applicants who are not Austrian citizens/equated to Austria citizens was 32 , of which 10 were accepted.

Federal aid for students in Austria was introduced in the 1960s as an accompanying measure towards the opening of the universities to make it possible for children from low-income families to start an academic career. Since 1992 the study financing has been more and more linked to other indirect support measures and the conditions of entitlement have been harmonised step by step.

The support measures can systematically be divided into two sections: transfer payments, which students receive directly, and expenses which students benefit from either by transfer payments to the students’ parents or non-cash benefits.

Direct measures are for instance need-based grants, tuition fee refunds, transportation cost allowances, insurance cost subsidies, grants for studying abroad etc.

Indirect measures are for instance family allowances, tax privileges and support for student housing and food services. Third-country nationals benefit from these indirect measures without any residence requirement.

As concerns direct measures, Section 4 of the Student Support Act of 1992 stipulates that citizens of contracting parties to the EEA- or EU-Agreement as well as third country nationals enjoy the same legal position as Austrian citizens to the extent ensuing from these agreements.

Training during working hours

The Committee noted in its conclusion (XVIII-2) that the report states that, as far as employees are concerned, time spent on supplementary training at the request of an employer is counted as ordinary working hours, unless prescribed otherwise in an agreement between the employer and the employee. The Committee asks if there have been any developments in this respect.

Efficiency of training

The Committee asks what measures are taken to evaluate vocational training programmes for young workers, including the apprenticeships. In particular, it wishes to be informed of the participation of employers’ and workers’ organisations in the supervision process.

Conclusion

The Committee concludes that the situation in Austria is not in conformity with Article 10§5 of the Charter on the ground that non-EEA nationals are subject to a lenth of residence requirement of five years to be eligible for financial assistance for training.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 1 - Vocational training for persons with disabilities

The Committee takes note of the information contained in the report submitted by Austria.

The Committee points out that Austria ratified the United Nations Convention on the Rights of Persons with Disabilities in 2008.

Definition of disability

As the report does not provide any further information on the definition of disability, the Committee refers to its previous conclusion (Conclusions XX-1 (2012)) with regard to this issue.

Anti-discrimination legislation

In its previous conclusion (Conclusions XX-1 (2012)), the Committee asked for the next report to clarify which law provided for express protection from discrimination on the ground of disability – and at what level of government. If such protection was implicit, it asked for examples of relevant case-law confirming this interpretation. It also asked whether the anti-discrimination legislation applying to the situation of persons with disabilities in education covered both public and private parties. 

In reply, the report states that the protection from discrimination deriving from the Federal Disability Equal Treatment Act (Bundesbehindertengleichstellungsgesetzt, BGStG) applies to all areas of federal administration, thus also covering most areas of school education. The Committee notes that this act provides for only one form of compensation, namely financial compensation, and therefore does not guarantee that discrimination will be reduced in practice. According to the report, higher education establishments (particularly universities) and matters relating to the internal organisation of compulsory schools are federal matters. The external organisation of compulsory schools, particularly as regards the maintenance of school buildings, falls within the remit of the Länder.The report points out that education programmes outside schools and universities, connected with the working world, are subject to protection against discrimination under the Disability Employment Act. 

According to the report, as at 28 February 2015, there had been 1 738 arbitration proceedings since the entry into force of the relevant legislation on 1 January 2006, and 204 of these related to applications lodged in 2011, 250 to applications in 2012, 218 to applications in 2013 and 222 to applications in 2014 (see the report for more details). Of these applications, 509 related to the Disability Equal Treatment Act during the reference period.

The Committee asks for examples of case-law and complaints filed with the relevant authorities (at federal and provincial level) in relation to discrimination on the ground of disability and the lack of reasonable accommodation in the education and training spheres.The Committee also asks what the proportion of cases in which complainants won their cases and were awarded compensation, and how many cases were decided in court and how many by arbitration.

Education

The Committee points out that its last conclusion under the 1961 Charter was deferred (Conclusions XX-1 (2012)) pending information on the implementation of the principle of inclusive education in practice and the measures taken and progress made during the reference period. The report states that the integration of children with special educational needs was adopted for regular primary schools in 1993. In 2012, amendments were made to the legislation on vocational preparation classes in special schools, as a result of which the 9^th year (pupils aged 14 and 15) became the vocational preparation year. Another amendment adopted in 2012 established the legal provisions for integration at pre-vocational schools and one-year home economics schools (Haushaltungsschulen). 

Pilot projects for integration continue to take place in lower secondary or middle schools (Hauptschulen), the initial years of general academic secondary schools (Gymnasien) and pre-vocational schools (Polytechnische Schulen). Pupils participating in these pilot programmes can receive instruction entirely or partially in accordance with the curriculum of the vocational preparation year, which was adjusted to the curriculum applied at pre-vocational schools in 2014.

The report states that over half of all primary schools and three quarters of all secondary modern schools have integrated classes and more than 50% of all pupils with special educational needs have been taught in integrated classes. 

According to the report, during the 2013/2014 academic year, there were 30 002 pupils with special educational needs out of a total of 568 157 pupils of compulsory school age. This figure comprised 6 160 pupils with special educational needs attending primary school (out of a total of 327 772 pupils) (1.9%); 3 404 attending lower secondary schools (out of a total of 94 452) (3.6%); 901 attending pre-vocational schools (out of a total of 16 367) (5.5%); 5 367 attending new middle schools (out of a total of 115 396) (4.7%) and 14 170 attending special needs schools (in other words 47.23% of the total of 30 002 pupils with special educational needs). The Committee asks whether the figure of 30 002 pupils with special educational needs in mainstream or special schools matches the total number of children of school age with disabilities. It notes that almost half of pupils with special educational needs attend special schools (compared to 13 200 in 2006/2007, see Conclusions XX-1 (2012)) and also takes note that the same observation was made by the UN’s Committee on the Rights of the Child and Committee on the Rights of Persons with Disabilities. Consequently, the Committee considers that the right of people with disabilities to mainstream education is not effectively guaranteed.

The Committee also asks what the success rate is in progressing to vocational training or higher education or to the open labour market and if qualifications obtained on leaving school are identical for all children and recognised when it comes to entering higher or vocational education or the open labour market. The Committee also asks for figures broken down according to Land to be provided in the next report. Given that sign language is now recognised as a language in its own right in the Austrian Constitution, the Committee also asks what measures are being taken to promote its use in education establishments.

Vocational training

The Committee notes the laws at Länder level, contained in the report, concerning the effective exercise of the right of persons with physical, mental or emotional disabilities or a sensory impairment to vocational training, integration or social reintegration.

The report states that after the 9th school year there is an option of integrated vocational training (IBA), a form of initial vocational training which corresponds to the educational needs of young people with disabilities or disadvantages and to the requirements of companies for suitably qualified young workers (see Conclusions XX-1 (2012)).

The Committee notes that pupils with physical and sensory disabilities are mainly integrated into all vocational technical, commercial, business, social, tourism and arts schools provided that they can fulfil the requirements of the curriculum.

The Service Centre of the Ministry of Social Affairs has nine offices in the Länder, serving as contact points for persons with disabilities concerning matters in the fields of work and equal treatment and focusing in particular on the transition from school to work. 

As to vocational training, the report describes a large number of programmes specifically geared to the needs of persons with disabilities, in particular: the Youth Coaching project, the Production School, the Vocational Training Assistance programme (Berufsausbildungsassistenz), Integrative Vocational Training and Job Coaching. The Committee notes that the figures provided in the report show a very significant increase in the number of training programs beneficiaries during the reporting period.

The Committee asks for information in the next report on the numbers of persons with disabilities in mainstream and special vocational training facilities, the number of special vocational training facilities for young people and adults with disabilities and the practical impact of the action plan to promote the integration of students with disabilities in higher education establishments.

Conclusion

The Committee concludes that the situation in Austria is not in conformity with Article 15§1 of the revised Charter on the ground that the right of persons with disabilities to mainstream education is not effectively guaranteed.

Article 15 - Right of persons with disabilities to independence, social integration and participation in the life of the community

Paragraph 3 - Integration and participation of persons with disabilities in the life of the community

The Committee takes note of the information contained in the report submitted by Austria.

It notes that in 2007 (outside the reference period), according to the data on that year’s microcensus, Austria had 1.7 million residents of private households with permanent impairments.

Anti-discrimination legislation and integrated approach

The Committee reiterates that the right of persons with disabilities to social integration provided for by Article 15§3 requires the removal of barriers to communication and mobility to give persons with disabilities access to road, rail, sea and air transport, public, social and private housing, and cultural activities and leisure, such as social and sporting activities. For this purpose, Article 15§3 requires:

·         anti-discrimination legislation covering both the public and private spheres in fields such as housing, transport, telecommunications, culture and leisure, as well as effective remedies for those who have been treated unlawfully;

·         a coherent policy for persons with disabilities, and positive action to secure the social integration and full and comprehensive participation of people with disabilities. These measures must be co-ordinated and based on clear legal foundations.

The Committee notes that according to the report, under Article 7 of the Constitution, the Federal Government, the Länder and the local authorities undertake to ensure equal treatment of people with and without disabilities in all spheres of everyday life (amendment of 1997 to the Federal Constitutional Law). 

The series of laws on the equal treatment of persons with disabilities which came into force on 1 January 2006 prohibits discrimination against persons with physical, mental, psychological or sensory disabilities. The Committee notes that the prohibition of discrimination against persons with disabilities also encompasses their family members. The components of these laws which are relevant to Article 15§3 are as follows:

·         the Federal Disability Equal Treatment Act (Bundes-Behindertengleichstellungsgesetz, BGStG) was amended in 2011 to increase the minimum amount of compensation awarded in cases of harassment and to extend protection against discrimination to persons who are discriminated against because of their close relationship with someone with a disability.

·         amendments to the Federal Disabled Persons Act establishing an Ombudsperson for persons with disabilities with a general advocacy role.

·         according to the report, as at 28 February 2015, there had been 1 738 arbitration proceedings since the entry into force of all these measures including the legislation on 1 January 2006, and 509 of these related to the Disability Equal Treatment Act during the reference period.

The report refers to the Insurance Law Amendment Act (Versicherungsrecht-Änderungsgesetz) of 2013, which introduced special protection against discrimination for people with disabilities into the Insurance Contract Act (Versicherungsvertragsgesetz). 

It also describes the legislation in the Land of Salzburg, where discrimination on the ground of disability is prohibited under Articles 28 and 29 of the Salzburg Equal Treatment Act (Salzburger Gleichbehandlungsgesetz, S.GBG) (see the report for more details). According to the report, during the reference period, seven people lodged applications or complaints concerning discrimination on the ground of disability in connection with access to public goods or services or matters relating to the accessibility of buildings or services. The Committee asks whether a legislative framework also exists in other Lands.

The report also describes the National Disability Action Plan (NAP Disability) for 2012-2020, which was adopted in 2012 and includes measures targeting persons with disabilities specifically, relating in particular to accessibility in the fields of sport, media, communications, construction and tourism. The Committee asks for information in the next report on this action plan, particularly with regard to its implementation at the various levels of Austria’s federal infrastructure, and on the results achieved.

The Committee also asks whether integrated programming is applied by all authorities involved in the implementation of the policy for persons with disabilities.

Consultation

The Committee points out that under Article 15§3, persons with disabilities must be consulted on the design, implementation and review of a coherent disability policy (Conclusions 2003, Italy).

According to the report, the Federal Disability Advisory Board is a body that advises the Federal Minister of Social Affairs on all key issues relating to disability policy. The Committee asks for information in the next report on the requirement for the local authorities to consult bodies protecting persons with disabilities. It also asks how persons with disabilities are represented and consulted in governmental bodies at national and local level.

Forms of financial aid to increase the autonomy of persons with disabilities

According to the European Commission report, family allowances are paid in Austria and for families with a child with a disability these allowances are increased by €138.30 per month and payment may be extended up to the age of 25. This report also states that long-term care benefits may be awarded in the event of physical, mental or emotional disability or sensory impairment. 

The Committee asks for the next report to provide details on benefits and other forms of financial assistance available to persons with disabilities.

Measures to overcome obstacles

Technical aids

The Committee points out that under Article 15§3 technical aids must be available either for free or subject to a modest contribution towards their cost (Conclusions 2007, Finland).

The report lists various grants (for items such as technical aids, orientation and mobility training and guide dogs) which may be awarded to people with disabilities to help with their full integration. Expenses incurred for the services of sign-language interpreters may also be covered if this kind of support serves the purpose of achieving or securing gainful employment or is required for training and education measures.

The Committee asks for the next report to state exactly what technical aids can be obtained by persons with disabilities. It asks whether persons with disabilities are entitled to technical aids free of charge or must contribute themselves to the cost. If an individual contribution is required, the Committee asks whether the state provides some financial contribution. It also asks whether mechanisms are in place to assess the barriers to communication and mobility faced by individual persons with disabilities and to identify the technical aids and support measures that may be required to assist them in overcoming these barriers

Communication

The Committee points out that, under Article 15§3, communications and new information technology must be accessible (Conclusions 2005, Estonia) and sign language must have an official status (Conclusions 2003, Slovenia).

With regard to communication, the Federal Disability Equal Treatment Act (Bundes-Behindertengleichstellungsgesetz, BGStG) provides expressly that if communication services are not accessible, this can constitute discrimination.

As to sign language, the Federal Constitution provides: “Austrian sign language shall be recognised as a language in its own right. Detailed provisions on the subject shall be set out in the relevant legislation”. Under the Social Law Amendment Act of 2010 persons dealing with social insurance bodies may call for the free assistance of a sign-language interpreter.

The Committee asks what is done to encourage access to new communication technologies.

Mobility and transport

The Committee points out that, under Article 15§3, public road, rail, sea and air transport, all newly constructed or renovated public buildings, facilities and buildings open to the public, and cultural and leisure activities should be physically accessible (Conclusions 2003, Italy).

As to transport and mobility, the National Action Plan referred to above provides, according to the report, for the creation of an inclusive transport system for all user groups by providing innovative products and services. 

The Committee asks how the accessibility of public road, rail and air transport is guaranteed, particularly in the Länder. It also asks whether persons with disabilities are entitled to free transport, or concessionary fares to cover any supplementary costs.

Housing

The Committee points out that under Article 15§3 the needs of persons with disabilities must be taken into account in housing policies, including the construction of an adequate supply of suitable, public, social or private, housing. Financial assistance should also be provided for the adaptation of existing housing (Conclusions 2003, Italy).

It is clear from the report that the legislation in the building sector, particularly the rules on the elimination of barriers linked to construction methods, falls within the competence of the Länder. The report states that the National Action Plan referred to above provides that measures relating to building regulations must be harmonised to guarantee accessibility. In view of the high cost of removing barriers, there is a ten-year transition period to make public buildings and transport accessible. The Federal Government and the transport service operators need to prepare plans for the gradual elimination of barriers, thus guaranteeing full accessibility by the end of the transition period. However, the Act was amended to extend the transition period up to 2019.

The Committee asks for information in the next report on grants available to individual people with disabilities for home renovation work and the removal of barriers to mobility, the number of beneficiaries of such grants and the general progress made on improving access to housing.

Culture and leisure

The Committee points out that under Article 15§3 the right of persons with disabilities to social integration implies that barriers to communication and mobility be removed in order to enable access to cultural activities and leisure (social and sporting activities) (Conclusions 2005, Norway).

The report also states that the National Action Plan includes measures relating to accessibility to federal cultural institutions and measures designed to make sport for persons with disabilities part of the general sports facilities on offer.

According to Austria’s initial report to the United Nations Committee on the Rights of Persons with Disabilities (2010), the Federal Sports Promotion Act ensures that sports for persons with disabilities have a secure financial basis.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 1 - Applying existing regulations in a spirit of liberality

The Committee takes note of the information contained in the report submitted by Austria.

It notes that all EEA citizens, as well as their family members, have free access to the labour market. During the reference period, a work permit was required for the nationals of the following states parties to the Social Charter: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria (until 1st January 2014), Croatia (transitional period rules apply as regards work permits until 2020, but a residence permit is not needed), Georgia, Republic of Moldova, Montenegro, Romania (until 1st January 2014), Russian Federation, Serbia, "The former Yugoslav Republic of Macedonia", Turkey and Ukraine.

Work permits

Pursuant to the relevant legislation (the 1975 Employment of Foreigners Act, as amended, the 2005 Settlement and Residence Act and the Aliens’ Police Act 2005), to enter and reside in Austria, foreign nationals wishing to work in gainful employment principally require an Austrian residence title (residence permit or settlement permit), the purpose of which includes employment activities.

The Committee notes from the report that a new type of permit, the Red-White-Red Card, was introduced in 2011 with the aim to facilitate the immigration and permanent settling of qualified third-country workers and their families, based on personal and labour-market related criteria (point based system). The Red-White-Red Card is issued for a period of twelve months and entitles the holder to fixed-term settlement and employment by a specified employer. It concerns very highly qualified workers, skilled workers in shortage occupations, other key workers, graduates of Austrian universities and colleges of higher education as well as Self-employed key workers.

Non-EEA foreigners wishing to seek employment in Austria may apply, upon certain conditions, for a jobseeker’s visa for 6 month (D visa) and, if they find employment within the validity period of the visa they may file an application for a Red-White-Red Card (either as employed or self-employed workers).

To supplement the Red-White-Red Card, the 2011 Aliens’ Law Reform Act (Fremdenrechtsänderungsgesetz, FrÄG) was passed, transposing the provisions of the Blue Card Directive into national law and introducing the EU Blue Card as a residence title. EU Blue Cards are issued to applicants fulfilling the following conditions: completed university course of three years minimum duration; an employment offer corresponding to the particular education; salary offer amounting to at least 150% of the average annual gross salary (€ 57 405); the Austrian Labour Market Service (AMS) is unable to place with the employer any registered Austrian or non-Austrian worker who is seeking employment and has equivalent skills.

While the Red-White-Red Card and the EU Blue Card are initially issued in connection with a specific job offer (or self-employed job) for a limited time, after a certain period (1 year for the holder of a Red-White-Red Card, 2 years for the holder of a EU Blue Card) their holder can apply for a Red-White-Red Card plus, which gives entitlement to residence and unlimited labour market access. Family members of Red-White-Red Card holders or EU Blue Card holders as well as of foreign citizens already permanently settled in Austria are also immediately entitled to a Red-White-Red Card plus.

The report also confirms that the previously applying quota system (Bundeshöchstzahl) was repealed as of 1 January 2014. Section 5 of the Employment of Foreigners Act authorises however the Federal Minister of Labour, Social Affairs and Consumer Protection to issue ordinances specifying contingents of foreign national skilled workers and harvest workers to cover temporary needs. Employment permits granted as part of such a contingent are automatically valid as residence permits for the duration of the employment (maximum six weeks for employment permits issued as part of a harvest worker contingent, maximum six months in other cases).

The Committee takes note of the detailed information provided, in response to its request, concerning the requirements to be met by non-EEA nationals who are not yet legal residents (first applicants) and wish to engage in a gainful occupation in Austria as self-employed. It notes in particular that self-employed workers can be issued a Red-White-Red Card upon an expert opinion by the provincial office of the Public Employment Service, identifying benefits for the economy as a whole that go beyond the benefits for a single business.

Relevant statistics

The Committee notes, from the OECD report 2015 on recent changes in migration movements and policies, that at the end of 2013 foreign born population in Austria was 16.7% of the whole population. Close to 590 000 foreigners were employed in Austria in 2014, an increase of 6% over the level in 2013. Employed foreign workers were almost equally split into EU citizens and nationals of no-EU countries. While the number of non-EU nationals in employment has remained stable, that of EU citizens has almost doubled since 2007.

The Committee takes note of the statistical data provided in the report on the number of long-term permits issued in 2014, which decreased substantially as a result of the accession to the EU of new countries over the reference period and of the consequent increase in the number of foreign workers who do not need a permit any longer.

It notes that, as regards nationals of non-EEA states parties to the Charter, 42 598 permits were issued in 2014, out of 48 597 applications, with a refusal rate of 12%. In response to the Committee’s request, the report indicates that the majority of refusals (about 60%) were based on a lack of occupational or other qualification (e.g. knowledge of German); in other words applicants did not achieve the total points required or did not submit the required proof of qualification. The second most common reason for refusal (20% of cases) is the employer’s inadequate pay offer, which usually indicates a risk of exploitation by the employer or signals wage and social dumping.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 18§1 of the Charter.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 2 - Simplifying existing formalities and reducing dues and taxes

The Committee takes note of the information contained in the report submitted by Austria.

Administrative formalities and time frames for obtaining the documents needed for engaging in a professional occupation

The Committee refers to its conclusion under Article 18§1 for a description of the current work and residence permits system, in particular as regards the introduction in 2011 of the Red-White-Red Card and the EU Blue Card systems. In response to the Committee’s question, the report indicates that the introduction of the new system has simplified the formalities for obtaining the documents needed for engaging in a professional occupation, in that it has established a combined residence and work permit (administered through a “one-stop shop”). As a result, the applicants, who include very highly qualified workers, skilled workers in shortage occupations, other key workers, self-employed key workers and university graduates, only have to submit one application and no longer two, i.e. for a separate residence title and employment permit, and thus avoid two sets of application procedures.

Other measures which, according to the report, have simplified the formalities needed include:

·         the abolition of the federal quota system which applied to work permits, replaced by a point-based system including in particular a labour market test (that is, the requirement, for certain occupations, to ascertain that there is no suitable candidate on the national or EEA labour market), which is however not required in all cases (for example, in the case of very highly qualified individuals, skilled workers in shortage occupations and graduates of Austrian universities);

·         the introduction of a visa for the purpose of job-seeking under Section 24a of the Aliens’ Police Act (Fremdenpolizeigesetz);

·         the possibility for workers in Austria to submit their application for a Red-White-Red Card while residing in the country (instead of submitting only from abroad);

·         the possibility for workers abroad to submit their application for a Red-White-Red Card (or EU Blue Card) through the competent authority representing Austria in the applicant’s home country and, since April 2012, through their potential employer in Austria as well;

·         the setting-up of a website, in German and English, providing information on migration (www.migration.gv.at/en/), as well as a contact form allowing potential applicants to get in touch with ministry employees, who will respond to their enquiries.

The Committee recalls that, with regard to the formalities to be completed, conformity with Article 18§2 presupposes the possibility of obtaining the residence and work permits at the same time and through a single application. It also implies that the documents required (residence/work permits) will be delivered within a reasonable time. It asks the next report to clarify whether there are still situations requiring a separate procedure in order to obtain a residence and a work authorisation and how long does it take, on average, for an applicant to obtain the requested employment title (Red-White-Red Card, EU Blue Card or other).

Chancery dues and other charges

As regards chancery dues and other charges, the report indicates that there have been no changes to the situation which the Committee previously found to be in conformity with the Charter (Conclusions XX-1 (2012)). The Committee asks for updated information in the next report on the regulatory criteria applied when the amount of the charges is set, clarifying, for instance, whether the charges correspond to the actual cost of processing the residence permit application and whether it is planned to introduce measures to reduce costs for workers or employers.

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 18§2 of the Charter.

Article 18 - Right to engage in a gainful occupation in the territory of other States Parties

Paragraph 4 - Right of nationals to leave the country

The Committee takes note of the information contained in the report submitted by Austria.

It notes from the report that the situation which it previously considered to be in conformity with the Charter has not changed (Conclusions XX-1 (2012)).

Conclusion

The Committee concludes that the situation in Austria is in conformity with Article 18§4 of the Charter.

Article 20 - Right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex

The Committee takes note of the information contained in the report submitted by Austria.

Equal rights

The Committee recalls that it examined aspects relating to maternity protection and family responsibilities under Article 8 and 27 of the Charter (Conclusions 2015).

The report indicates that the principle of equality and the principle of non-discrimination are guaranteed in several provisions of Austrian federal constitutional law. Article 7 (2) of the Federal Constitutional Law (Bundes-Verfassungsgesetz, B-VG) states that equal treatment and positive discrimination measures shall be considered as constitutional (not breaching the equality principle) until material equality between men and women is achieved. Article 13 (3) of the B-VG further states that “the Federal Government, Laender and municipalities are to strive for the actual equality of women and men in their budgeting.”

The report further indicates that the Federal Equal Treatment Act for the Private Sector (Gleichbehandlungsgesetz, GlBG) prohibits direct and indirect discrimination on grounds of gender in relation to access to employment, working conditions and remuneration, termination of an employment relationship. The GIBG provides that discrimination also occurs where individuals are instructed to discriminate and where individuals are discriminated against due to their close relationship with a person of a certain gender. Positive action, i.e. action aimed at promoting gender equality and eliminating inequalities, is not considered discrimination.

As to the public sector, the report indicates that Federal Act on the Equal Treatment of Women and Men and the Advancement of Women within the Federal Authorities (Bundes-Gleichbehandlungsgesetz, B-GlBG) prohibits direct and indirect discrimination on grounds of gender in relation to recruitment, working conditions and remuneration, termination of employment. The B-GIBG applies to contractual public employees and civil servants, quasi-freelancers contracting with a federal authority, apprentices, participants in administrative internships pursuant to the Contractual Public Employees Act 1948 (Vertragsbedienstetengesetz, VGBG), individuals in national training service, and candidates for employment or training with the Federal Government. Exemptions from the principles of equal treatment or advancement of women exist only where gender is a prerequisite for a certain job.

The Committee recalls that exceptionally and subject to strict interpretation certain jobs and occupational activities may be limited to persons of one sex, if this is due to the nature of such jobs and activities or the context and conditions in which they are carried out. Such a limitation can only be in conformity in respect of jobs /activities where gender constitutes a genuine occupational requirement (Appendix to Article 20, §4). The Committee asks whether there are activities where gender is a prerequisite for their performance and examples of such activities.

The Committee further recalls that according to the Appendix to Article 20 (§2), provisions concerning the protection of women are not deemed to be discrimination. Such provisions must be objectively justified by needs that apply exclusively to women, such as those relating to maternity (pregnancy, childbirth and the post-natal period). These particular rights are also guaranteed by Article 8 of the Charter (right of employed women to protection of maternity). On the other hand, prohibiting women from performing night work or underground mining while authorising men to do so, is contrary to the principle of equal treatment (Conclusions 2012 Bosnia Herzegovina, Article 20). The Committee asks whether women are prohibited to perform certain activities and in what circumstances.

With regard to the available remedies, the report indicates that any person who considers herself/himself a victim of discrimination may file a complaint based on the provisions of the Equal Treatment Act before a court of law. In case the principle of equal treatment is violated, compensation awarded may consist in:

·         compensation for financial losses, i.e. actual harm caused (positiver Schaden) and loss of profit; or

·         restoring a discrimination-free situation and, in both cases, additionally

·         compensation for the immaterial damage and the personal impairment suffered.

As for the amount of compensation, the report indicates that as of the amendment to the Equal Treatment Act that entered into force on 1 March 2011, the minimum amount of damages in the context of the establishment of an employment relationship is at least two months’ pay with the addition of compensation for the immaterial damage suffered. In the case of career advancement, the amount of damages continues to be the difference in pay for at least three months with the addition of compensation for the immaterial damage suffered. As for the other discriminatory acts, no maximum amount of damages is defined. The report adds that the legislation was amended as of 1 August 2013 to expressly address court proceedings, specifying that the awarded compensation must be effective and proportionate as well as suited to preventing discrimination.

Individual employees who claim that they have been discriminated have the option of appealing to: (i) the Labour and Social Court, or (ii) the Equal Treatment Commission, or (iii) first the Commission, then the Court, or (iv) the Court and the Commission simultaneously.

Whereas the decisions of the Equal Treatment Commission are not binding, the Commission can contribute to achieve equal treatment by issuing expert opinions on general issues related to the breach of the equal treatment principle and by making proposals to employers in the individual case. An application filed with the Equal Treatment Commission interrupts the statutory period within which claims must be asserted in court. NGOs as well as employer and employee organisations may participate in proceedings before the Equal Treatment Commission and in labour court proceedings. The Committee takes note of the information on the activities of the Equal Treatment Commission during the reference period provided in the report.

The Committee notes from the report that protection from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment was introduced as a measure for enhanced protection against discrimination. Such protection covers not only the person filing the complaint but others as well, such as other employees or witnesses who support the complaint.

The report further indicates that the Equal Treatment Ombuds Office, which is established within the Federal Chancellery, provides counselling and aid to individuals who feel they have been discriminated against. The Committee asks that the next report provide information on its activities in relation to gender equality in employment.

Concerning the burden of proof, the report indicates that in proceedings before the Equal Treatment Commission and before the courts, the claimants have to establish facts from which it may be presumed that they have been the subject of discrimination on grounds of gender. They must present plausible reasons for having experienced discrimination. It is up to the alleged discriminator to prove the greater likelihood of another motive being the decisive reason for different treatment, or that the other gender is a necessary prerequisite for the work to be performed or that other objective reasons exist.

The Committee notes from the report that in the federal public service, special institutions have been established in order to achieve equal treatment and the advancement of women, such as: a separate Federal Equal Treatment Commission serving as an arbitration board for federal employees when lodging complaints; working parties for equality issues with the central administrative bodies composed of the equality officers of each of the central administrative bodies; equality officers; contact women in the administrative offices; Inter-ministerial Working Group. The Committee takes note of the legislative amendments brought during to the B-GIBG for the public sector during the reference period, such as: the women’s quota as defined in the provisions specifying special measures for the advancement of women was increased to 50%; part-time employees and those employed for less than a year were included in the Federal Government income reports; minimum remuneration is to be indicated in job postings by the Federal Government.

With regard to equal pay for equal work or work of equal value, the Committee notes that the principle is guaranteed by the paragraph 3 of Equal Treatment Act (for the private sector) and paragraph 4 of Federal Equal Treatment Act (European Equality Law Network, Country Report on Gender Equality, 2015).

The Committee recalls that it examines the right to equal pay under Article 20 and Article 4§3 of the Charter, and does so therefore every two years (under thematic group 1 “Employment, training and equal opportunities”, and thematic group 3 “Labour rights”). Articles 20 and 4§3 of the Charter require the possibility to make pay comparisons across companies (Conclusions 2010, France). At the very least, legislation should require pay comparisons across companies in one or more of the following situations:

·         cases in which statutory rules apply to the working and pay conditions in more than one company;

·         cases in which several companies are covered by a collective works agreement or regulations governing the terms and conditions of employment

·         cases in which the terms and conditions of employment are laid down centrally for more than one company within a holding (company) or conglomerate.

(Statement of Interpretation on Article 20, Conclusions 2012).

The Committee recalls that in equal pay litigation cases the legislation should allow pay comparisons across companies only where the differences in pay can be attributed to a single source. For example, the Committee has considered that the situation complied with this principle when in equal pay cases comparison can be made with a typical worker (someone in a comparable job) in another company, provided the differences in pay can be attributed to a single source (Conclusions 2012, Netherlands, Article 20) or when pay comparison is possible for employees working in a unit composed of persons who are in legally different situations if the remuneration is fixed by a collective agreement applicable to all entities of the unit (Conclusions 2014, France, Article 4§3).

The Committee refers to its Conclusion 2014 on Article 4§3 where it noted that wages and working conditions in Austria are generally governed by industry-specific collective agreements. Taking into consideration that the equal pay requirement also applies to collective agreements, this in itself implies that regulations concerning the remuneration of employees which are binding not only at corporate or trans-corporate level, but for the entire industry, are the basis for these employment relationships and that the principle of equal pay for equal work or work of equal value has to be complied with when assessing the jobs (Conclusions 2014 on Article 4§3). The report adds that the assessment of the job and the fixing of the remuneration take place at industry level than at corporate level.

The report further indicates that the differences among the companies may arise only if wages/salaries higher than specified in the binding provisions of the individual industry-specific collective agreements are paid, with these differences affecting men and women alike. For example, if a prospering company pays its employees 20% more than required by the collective agreement (overpayment), this company is internally bound to the equal pay principle in the remuneration of its employees. However, this cannot be used as a reference for a different company in the same industry which cannot afford the same overpayment as the first company, due to lack of commercial success.

The Committee considers that the pay gap may indeed be due to different levels of regional development as well as the differences in economic performance of companies, or to other similar reasons. However, these reasons should not preclude the workers from trying their equal pay case by comparing their pay with that of another worker performing the work of equal value in another company, based on the criteria outlined above. Noting that comparisons of pay are possible between employees who are working for different companies governed by the same industry-specific collective agreement, the Committee considers that the situation is in conformity with the Charter on this point.

The Committee takes note from the report of measures taken with a view to improve income transparency. Firstly, businesses have been required to prepare income reports and remuneration analyses every two years. As of 2014 this requirement applies to companies with more than 150 employees. The Federal Government is required as of 2011 to compile annual income reports aimed at closing the gender pay gap in the public service sector. Secondly, the statutory requirement was introduced to indicate the minimum pay level in job advertisements as well as to indicate whether the employer is prepared to provide overpayment. Sanctions for infringements have been imposed since January 2012. Thirdly, where individual cases of pay discrimination are suspected, the Equal Treatment Ombuds Office and the Equal Treatment Commission’s Senates are legally authorised to collect income data on reference periods from the competent social insurance institution. According to the report the effects of these measures will be evaluated in 2013. The Committee wishes to be informed of the impact of these measures.

The Committee takes note from the report of the information provided on the case law of the labour and social courts as well as the Equal Treatment Commission for the private sector in dealing with cases alleging pay discrimination during the reference period.

Equal opportunities

The report indicates that the percentage of female workers within the actively employed workforce overall was 45.7% in 2014. A large number of all dependently employed women work part-time; 45.9% of women and 8.5% of men worked part-time in 2013. According to the Public Employment Service’s registration figures, the female unemployment rate was 7.6% in 2014, and the rate for males 9.0%.

The report indicates that in the private sector the gender pay gap (fully unadjusted, expressed in terms of mean gross annual income) was 39.1% in 2013, i.e. women earned on average this much less than men. This -40% difference has remained more or less the same over the past 15 years. This can be explained for the most part by the extremely large, increasing percentage of women working part-time

With regard to the public service, the mean incomes of women in federal public service are nonetheless lower than those of men, although the percent difference is much smaller than in the private sector. When adjusted for the number of working hours and for cases of employment lasting less than a year, the gender pay gap in the federal public service stood at 13.3% in 2012 and at 12.8% in 2013; which was in contrast to a difference of 19.5% when the hourly wages of full and part-time employees in Austria are compared, or of 18.5% between women and men employed full-time and year-round.

The Committee notes that according to Eurostat data, the gender pay gap stood at: 23.7% in 2011, 23.4% in 2012, 23% in 2013 and 22.9% in 2014. The Committee notes that the gender pay gap was higher than the EU 28 average of 16.1% in 2014.

The report indicates that a package of 55 specific measures were defined under the National Action Plan on Gender Equality in the Labour Market, published in June 2010, as a means of achieving four strategic goals: (i) diversifying educational paths and career choices; (ii) increasing women’s labour force participation and full-time employment; (iii) increasing the number of women in management positions; and (iv) reducing the gender pay gap.

The Committee takes note from the report of the measures and programmes taken to promote gender equality during the reference period. The focus of these measures was on encouraging the reintegration of women workers into the labour market after childcare breaks (“Return to work” programme), providing further occupational training to women with family responsibilities (“Competence with system” project), reconciling work and family life (by increasing the amount of childcare allowance, increasing the number of childcare places, granting fathers a legal entitlement to four weeks’ unpaid post-natal leave in the public sector) and providing training for women and girls in non-traditional professional fields in order to reduce gender segregation (“Women in Trade and Technology”).

The report further indicates that Women’s Employment Centres were established to offer a comprehensive range of advisory and other services aimed at providing intensive and personalised support for women looking to improve their skills. The Women’s Employment Centres provided support to around 6,800 women across Austria in 2014. The report indicates that the total spending on women re-entering the labour market was of Eur 93 million in 2014.

The report indicates that measures have taken to increase the representation of women in management positions. The Federal Government adopted a detailed women’s quota in March 2011, applying to the supervisory boards of state-owned and state-affiliated businesses in which the Federal Government holds a share of 50% or more. The plan provides for a gradually increasing percentage of women among the supervisory board members delegated by the Federal Government, specifically 25% by 2013 and 35% by 2018. Since September 2013 the Women’s Affairs Department of the Federal Ministry of Education and Women’s Affairs (BMBF) has acted as coordinator of “Women are top! To the top by innovative corporate cultures”, a Progress project with the goal of increasing the proportion of women sitting on advisory boards and in executive positions.

The report indicates however that the share of female employees is particularly large in the sectors as “activities of households as employers” (85.1%, with a total of only 2,957 employees) and “human health and social work activities” (76.3%). The share of women is particularly small in construction (12.2%), mining (12.8%) and energy supply (17.3%).

Noting that despite the measures taken to ensure gender equality in employment, there is still an occupational sex segregation on the labour market and that the gender pay gap is still high, the Committee asks the next report to provide comprehensive information on all measures taken to eliminate de facto inequalities between men and women, including positive actions/ measures taken. It asks in particular information on their implementation and impact on combating occupational sex segregation in employment, increase women’s participation in a wider range of jobs and occupations, including decision-making positions, and to reduce the gender pay gap. Meanwhile, it reserves its position on this point.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 25 - Right of workers to protection of their claims in the event of the insolvency of their employer

The Committee takes note of the information contained in the report submitted by Austria.

Article 25 of the Charter guarantees the right of individuals to their wages and other payments arising from the employment relationship in the event of the insolvency of their employer. States having accepted this provision benefit from a margin of appreciation as to the form of protection of workers’ claims and so Article 25 does not require the existence of a specific guarantee institution. However, the Committee wishes to emphasise that the protection afforded, whatever its form, must be adequate and effective, also in situations where the assets of an enterprise are insufficient to cover salaries owed to workers. Moreover, the protection should apply in situations where the employer’s assets are recognised as insufficient to justify the opening of formal insolvency proceedings.

The Committee takes note that the main rules regarding the protection and scope of outstanding claims of employees in the event of their employer becoming insolvent are laid down in the Insolvency-Guarantee of Remuneration Act (Insolvenz-Entgeltsicherungsgesetz, IESG). The original version of the IESG entered into force on 1 January 1978 and was promulgated in Federal Law Gazette no. 324/1977. It has since been amended a number of times; during the period under review (2011 to end of 2014) there were five amendments (Federal Law Gazette I no. 111/2010, Federal Law Gazette I No. 24/2011, Federal Law Gazette I No. 39/2011, Federal Law Gazette I No. 35/2012, Federal Law Gazette I no. 30/2014).

The report indicates that the IESG has been guided by the same basic principles from the outset: a)the employer must be insolvent (i.e. unable to meet payment obligations); this insolvency is established by court order; b) there must be or must have been an employment relationship between the employee and the insolvent employer; c) claims arising from this employment relationship must be outstanding as a result of this insolvency; d) the employee has six months – from the date of the court order establishing the insolvency – to apply to the Austrian guarantee institution for payment of the outstanding claims arising from the employment; e) if insolvency law requires outstanding claims to be filed in any insolvency proceedings pending, entitlement to insolvency pay is dependent on this being done; f) the guarantee institution decides on claims submitted to it and issues one or more administrative decisions stating its decision; g) if the guarantee institution accepts the claims submitted (in whole or in part), the corresponding sums are paid out from the Insolvency Remuneration Fund (Insolvenz-Entgeltsicherungs-Fonds, IEF); the IEF is financed chiefly by contributions made by employers.

The Committee notes that the amendment published in Federal Law Gazette no. 580/1980 imposed limits regarding amounts that can be claimed and time limits for these claims. Following the amendment published in Federal Law Gazette No. 647/1982, employee social security contributions (health and pension insurance) not paid by employers will be paid using IEF funds if – generally – the regional health insurance fund concerned was not able to recover these sums in the insolvency proceedings (= dependent on the assets in the estate). The amendment published in Federal Law Gazette I No. 618/1987 applies the same rule to contributions not paid by insolvent construction companies to fund inter alia the holiday entitlements of construction workers. Finally, the amendment published in Federal Law Gazette I No. 158/2002 requires the IEF to make an annual payment to the Republic of Austria specifically dedicated to the funding of apprenticeships and employment for young people; this concerns funding for apprentices in particular. Payments equivalent to approximately € 180 million are made per year.

The report indicates that the IESG provides an exhaustive list of the types of court order (as indicated by the Insolvency Law Amendment Act 2010 (Insolvenzrechtsänderungsgesetz, IRÄG 2010), Federal Law Gazette I No. 29/2010) which are deemed to confirm the insolvency of the employer with binding effect for the guarantee institution: a) proceedings under the Insolvency Code (Insolvenzordnung, IO), Imperial Law Gazette No. 337/1914 (note: restructuring with self-administration, restructuring without self-administration, bankruptcy proceedings); b)supervised administration order (note: special insolvency proceeding for banks); c) non-commencement of insolvency proceedings because assets are insufficient to cover costs; d) refusal to commence insolvency proceedings following dissolution of a legal entity until the assets of that entity have been distributed; e) removal from the company register of a capital company or cooperative society possessing no assets; f) rejection of application for commencement of insolvency proceedings where assets (of the insolvent employer) are no longer situated within the territorial jurisdiction of the court.

The report indicates that employees have to apply within six months after the opening of insolvency proceedings. The claims will then be assessed. The assessment will include a consultation with the employer or insolvency administrator. Payments from the IEF to employees are limited to twice the amount of the maximum contribution basis (Höchstbeitragsgrundlage) for social insurance contribution (€ 9,300 in 2015).

The Committee recalls that under Article 25 the workers claims to be covered by the employer in case of insolvency shall not be less than three months under a privilege system and eight weeks under a guarantee system. In this connection the Committee notes from the report that insolvency of the employer is payable for worker’s claims which arose for current wages of the last six months and holiday pay of the last year. Besides, the employer is also obliged to pay for claims in respect of other types of paid absence (holidays, sick leave), at not less than three months under a privilege system and eight weeks under a guarantee system. States may limit the protection of workers’ claims to a prescribed amount but the limit set must be of an acceptable level. The Committee has previously held that three times the average monthly wage of the employee to be an acceptable level (Conclusions 2005, Estonia). To this respect the Committee asks what is the amount paid to satisfy other claims (holiday pay due as a result of work performed during the year in which the insolvency occured, other types of paid absence).

The Committee further recalls that the protection afforded, whatever its form, must be adequate and effective also in situations where the assets of an enterprise are insufficient to cover salaries owed to workers. Moreover, the protection should also apply in situations where the employer’s assets are recognised as insufficient to justify the opening of formal insolvency proceedings. The Committee asks what rules apply in such situations.

The Committee recalls that under Article 25 of the Charter in order to demonstrate the adequacy in practice of the protection, States must provide information, inter alia, on the average duration of the period when a claim is lodged until the worker is paid and on the overall proportion of workers’ claims which are satisfied by the guarantee institution. The Committee requests that the next report provide this information.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in Austria is in conformity with Article 25 of the Charter.

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

AZERBAIJAN

This text may be subject to editorial revision.

The role of the European Committee of Social Rights (the Committee) is to rule on the conformity of the situation in States Parties with the Revised European Social Charter (the Charter). The Committee adopts conclusions through the framework of the reporting procedure and decisions under the collective complaints procedure.

The following chapter concerns Azerbaijan, which ratified the Charter on 2 September 2004. The deadline for submitting the 9th report was 31 October 2015 and Azerbaijan submitted it on 7 December 2015. The Committee received on 22 December 2015 observations from the International Organisation of Employers (IOE) expressing its perspective on the application of Article 24.

In accordance with the reporting system adopted by the Committee of Ministers at the 1196th meeting of the Ministers’ Deputies on 2-3 April 2014, the report concerns the following provisions of the thematic group "Employment, training and equal opportunities":

·         the right to work (Article1),

·         the right to vocational guidance (Article 9),

·         the right to vocational training (Article 10),

·         the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),

·         the right to engage in a gainful occupation in the territory of other States Parties (Article 18),

·         the right of men and women to equal opportunities (Article 20),

·         the right to protection in cases of termination of employment (Article 24),

·         the right to workers to the protection of claims in the event of insolvency of the employer (Article 25).

Azerbaijan has accepted all provisions from the above-mentioned group except Articles 10, 15, 18 and 25.

The reference period was 1 January 2011 to 31 December 2014.

In addition, the report contains also information requested by the Committee in Conclusions 2014 in respect of its findings of non-conformity due to a repeated lack of information:

·         right to organise, (Article 5)

·         right to bargain collectively – joint consultation (Article 6§1),

·         right to bargain collectively – conciliation and arbitration (Article 6§3),

·         right of workers to take part in the determination and improvement of working conditions and working environment (Article 22),

·         right to dignity in the workplace – moral harassment (Article 26§2),

·         right of workers’ representatives to protection in the undertaking and facilities to be accorded to them (Article 28).

The conclusions relating to Azerbaijan concern 13 situations and are as follows:

– 2 conclusions of conformity: Articles 6§3 and 24

– 9 conclusions of non-conformity: Articles 1§2, 1§3, 1§4, 5, 9, 20, 22, 26§2 and 28

In respect of the other 2 situations related to Articles 1§1 and 6§1 the Committee needs further information in order to examine the situation. The Committee considers that the absence of the information requested amounts to a breach of the reporting obligation entered into by Azerbaijan under the Charter. The Committee requests the Government to remedy this situation by providing the information in the next report.

The next report will deal with the following provisions of the thematic group "Health, social security and social protection":

·         the right to safe and healthy working conditions (Article 3),

·         the right to protection of health (Article 11),

·         the right to social security (Article 12),

·         the right to social and medical assistance (Article 13),

·         the right to benefit from social welfare services (Article 14),

·         the right of elderly persons to social protection (Article 23),

·         the right to protection against poverty and social exclusion (Article 30).

The report should also contain information requested by the Committee in Conclusions 2015 in respect of its findings of non-conformity due to a repeated lack of information:

·         right of children and young persons to protection – prohibition of employment of children subject to compulsory education (Article 7§3),

·         right of children and young persons to protection – special protection against physical and moral dangers (Article 7§10, 2nd ground),

·         right of employed women to protection of maternity – prohibition of dangerous, unhealthy or arduous work (Article 8§5),

·         right of workers with family responsibilities to equal opportunity and treatment – participation in working life (Article 27§1),

·         right of workers with family responsibilities to equal opportunity and treatment – parental leave (Article 27§2, 2nd ground).

The deadline for submitting that report was 31 October 2016.

Conclusions and reports are available at www.coe.int/socialcharter.

Article 1 - Right to work

Paragraph 1 - Policy of full employment

The Committee takes note of the information contained in the report submitted by Azerbaijan.

Employment situation

According to the World Bank, the GDP growth rate increased between 2011 and 2013 from 0.0% to 5.8% before decreasing to 2.0% in 2014.

According to Eurostat, the overall employment rate increased slightly during the reference period, namely from 65.1% (2011) to 66.7% (2014).

The male employment rate remained relatively stable (2011; 68.2% – 2014; 69.8%) whereas the female employment rate increased considerably from 52.1% (2011) to 63.6% (2014). The employment rate of older workers dropped significantly from 59.8% (2011) to 53.1% (2014).

According to the report, the unemployment rate decreased slightly (2011; 5.4% – 2014; 4.9%). The youth unemployment rate (% of active population aged 15-24) decreased from 15.5% in 2011 to 13.5% in 2013. During 2014, the long-term (over a year) unemployment rate among the unemployed registered in the States Employment Service was 86.9%.

The Committee notes the particularly difficult situation of the long-term unemployed.

Employment policy

The Committee notes from the report that the Azerbaijan employment policies are implemented by means of the ‘State Program on the implementation of the Employment Strategy of 2011 – 2015‘, as approved by the Presidential Decree No 1836 of 15 November 2011.

Particular measures have been taken to increase youth employment such as the provision of small loans to engage in small entrepreneurship activities facilitating the transition from ‘school to work’. The Committee asks to provide in the next report information on the number of young people benefiting from such measures.

According to the report, public expenditure on active labour market policies in Azerbaijan amounted to 0.01% of GDP in 2014 which the Committee considers as extremely low despite the positive trends on the labour market.

Finally, the Committee notes that no information was provided to the question raised in its previous Conclusion namely to monitor regularly the employment policies with a view to increasing their effectiveness. The Committee asks for the next report to provide information on any activation measures targeted towards long-term unemployed.

Conclusion

Pending receipt of the information requested, the Committee defers its conclusion.

Article 1 - Right to work

Paragraph 2 - Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects)

The Committee takes note of the information contained in the report submitted by Azerbaijan.

1. Prohibition of discrimination in employment

The Committee noted previously that Article 16 of the Labour Code prohibits discrimination in employment based on citizenship, sex, race, nationality, language, place of residence, social status, social origin, age, family situation, religion, political opinions, beliefs or other factors unrelated to professional qualifications, job performance or professional skills of the employee. Special measures on behalf of women, disabled persons, minors and other persons requiring social protection do not constitute discrimination. Persons who consider that they have been discriminated against may appeal to the courts (Conclusions 2008).

As regards discrimination on grounds of disability, the Committee had previously noted that it was not expressly prohibited but may be covered by the phrase “other factors” (Conclusions 2012). The Committee recalled in this respect that states should promote access to employment on the open labour market for persons with disabilities, both for physically and intellectually disabled persons. It asked whether jurisprudence requires employers to make reasonable accommodation for persons with disabilities and details of any case law concerning discrimination on grounds of disability (Conclusions 2012).

The report mentions that measures to ensure the social integration of persons with disabilities and to increase their access to employment were envisaged as key priorities of the “Employment Strategy of Azerbaijan for 2006-2015” (approved by Presidential Decree No. 1068/2005) and of the “State Program on the implementation of the employment strategy of Azerbaijan for 2011-2015” (approved by the Presidential Decree No. 1836/2011). The Committee asks information on the concrete effects/impact of the above mentioned strategy and program on the employment of persons with disabilities.

The report does not specify whether employers are required to make reasonable accommodation for persons with disabilities and no information is provided with regard to case law concerning discrimination in employment on grounds of disability. In the absence of such information, the Committee concludes that the situation is not in conformity with the Charter on the ground that it has not been established that employers are required to make reasonable accomodation for persons with disabilities.

The Committee previously noted that there is no shift in the burden of proof in discrimination cases and it concluded therefore that the situation was not in conformity with Article 1§2 on this point (Conclusions 2012). The report indicates that under Section 77 of the Code of Civil Procedure each party to the proceedings shall provide evidence for their claims and objections. Noting that there has been no change to the situation and the domestic law does not provide for a shift in the burden of proof in favour of the plaintiff in discrimination cases, the Committee maintains its conclusion of non-conformity on this point.

As regards discrimination on grounds of nationality the Committee noted that positions in the civil service are reserved for citizens of the Azerbaijan Republic, irrespective of the powers or authority of the post, and it therefore considered that this restriction/ban on foreign nationals being employed in the civil service goes beyond that permitted by the Charter. The report indicates that only the citizens of the Republic of Azerbaijan may be employed in the civil service. Thus, the Committee considers that the situation is not in conformity with Article 1§2 of the Charter on the ground that nationals of the other States Parties to the Charter do not have access to civil service posts, which constitutes a discrimination on grounds of nationality.

In its previous conclusion, the Committee asked information on the cases before the courts or the Ombudsman alleging discrimination in employment (Conclusions 2012). It also asked information on any cases alleging discrimination on grounds of sexual orientation in employment brought before the courts or any other body and whether any measures have been taken to raise awareness on discrimination on grounds of sexual orientation (Conclusions 2012). The report does not provide the requested information. The Committee reiterates its questions.

The Committee asks the next report to provide detailed information on the mandate and powers of the Commissioner for Human Rights (Ombudsman) relating to discrimination in employment on all prohibited grounds. It also asks information on the activities/supervision of the state labour inspectorate in this area, including as regards the examination and the outcomes of complaints submitted by workers.

The Committee asks in particular detailed information on the concrete means/remedies available to victims of discrimination in employment in practice. It also asks whether protection is guaranteed against dismissal or other retaliatory action by the employer against an employee who has lodged a complaint or taken a legal action.

The Committee points out that if the information is not provided in the next report, there will be nothing to establish that the situation is in conformity with regard to the effective implementation in practice of the legislation prohibiting discrimination in employment.

2. Prohibition of forced labour

Work of prisoners

The Committee notes that prisoners may work either in prison or for outside companies. Three types of work are currently on offer to them: work in industry, individual labour and community service. In the first two cases, prisoners are paid on a piece-work basis and in the third, at an hourly rate. Under the Sentencing Code, which governs prison work, working conditions in prisons must comply with ordinary labour law and must be identical to those applying to workers not deprived of liberty. All prisoners sign employment contracts and are made aware of occupational health and safety rules. Wages are fixed in accordance with Decision No. 149 of 15 September 2001 of the Cabinet of Ministers of the Republic of Azerbaijan. For full-time work carried out satisfactorily, pay must not be lower than the minimum defined amount.

The report states that prisoners are entitled to pensions and other social benefits in accordance with the relevant legislation. Referring in this connection to its Statement of Interpretation on Article 1§2 (Conclusions 2012), the Committee asks for up-to-date information in the next report on the social protection of prisoners during their imprisonment.

Domestic work

The Committee notes that the report does not answer the questions it put on domestic work in its Statement of Interpretation on Article 1§2 in the General Introduction to Conclusions 2012. Consequently, the Committee repeats its request for relevant information in the next report on the matters raised in this Statement of Interpretation, in which it drew attention to the existence of forced labour in the domestic environment and in family businesses, particularly information on the laws enacted to combat this type of forced labour or on the steps taken to apply such provisions and monitor their application. The Committee points out that if the information is not provided in the next report, there will be nothing to establish that the situation is in conformity with Article 1§2 of the Charter regarding prohibition of forced labour in respect of domestic workers and within family businesses.

3. Other aspects of the right to earn one’s living in an occupation freely entered upon

Minimum periods of service in the Armed Forces

The report states that the establishment of an alternative to military service is not being considered in Azerbaijan because the state is currently at war.

In its previous conclusion (Conclusions 2012), the Committee pointed out that any minimum period of service in the armed forces had to be of a reasonable duration and in cases of longer minimum periods due to any education or training that an individual had attended, the length had to be proportionate to the duration of the education and training. Likewise any fees/costs to be repaid on early termination of service had to be proportionate. Since the report does not provide any information on the situation of Azerbaijan in this respect, the Committee asks for up-to-date information on the subject in the next report.

Requirement to accept the offer of a job or training

The Committee notes from the report that under Article 4.5.3 of the Employment Law, persons who have lost their job who do not present themselves to the relevant bodies to seek a job within ten days after they have registered as unemployed or reject two job offers presented to them by these bodies over the same period are not entitled to acquire unemployed status. Refusals to award them unemployment benefit or postponement of payment of benefits may be disputed before the relevant authorities or the courts (Article 4, paragraph 4.2 of the Regulations on Calculation and Payment of Unemployment Benefits of 22 January 2002). The Committee also notes that if the offer of a job or training entails a change in place of residence, the State provides compensation for the expenses incurred.

The Committee asks for information in the next report on the rules and procedures governing the examination of rejections of applications for unemployment benefit and the extent of this phenomenon.

Privacy at work

The Committee reiterates that the right to undertake work freely includes the right to be protected against interferences with the right to privacy. As the report does not provide any information in this respect, the Committee asks for information in the next report on measures taken by the state to ensure that employers give due consideration to workers’ private lives in the organisation of work and that all interferences are prohibited and where necessary sanctioned (Statement of Interpretation on Article 1§2, Conclusions 2012). The Committee points out that if the information is not provided in the next report, there will be nothing to establish that the situation is in conformity with Article 1§2 of the Charter regarding respect for the right to privacy at work.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 1§2 of the Charter on the grounds that:

·         it has not been established that it is required for employers to make reasonable accommodation for persons with disabilities;

·         legislation does not provide for a shift in the burden of proof in discrimination cases;

·         nationals of the other States Parties to the Charter do not have access to civil service posts.

Article 1 - Right to work

Paragraph 3 - Free placement services

The Committee takes note of the information contained in the report submitted by Azerbaijan.

In particular, it notes the information provided in reply to the questions contained in its previous conclusions (Conclusions 2012).

According to the information made available in the previous report, the Committee noted that employment services are provided by the State Employment Service (SES) and that services are free of charge. As can be seen from the report, no updated information has been provided on the requirement of a fully-fledged free employment services. The Committee asks the next report to confirm compliance with the above mentioned requirement. In this respect, it also recalls that fees imposed on employers for the notification of vacancies is contrary to Article 1§3, even where the fees are small and aimed only at covering administrative costs (Conclusions XIV-1 (1998), Turkey). The existence of fee-charging by private employment agencies is not contrary to Article 1§3 provided that fully-fledged free employment services exist in all occupational sectors and geographical areas.

In reply to the Committee’s request, the report indicates that the placement rate was equal to 25% in 2014 and that 407 people were employed at the local agencies of the State Employment Service, 59% of which were engaged in job placement activities. In this respect, in order to assess the effectiveness in practise of free employment services, the Committee asks that the next report provides information for each year of the reference period on: a) the number of job seekers and unemployed persons registered with SES; b) the number of vacancies notified to SES; c) the number of persons placed via SES; d) the placement rate (i.e. placements made by the employment services as a share of notified vacancies); e) the number of persons working in SES (at central and local level); f) the number of counsellors involved in placement services; g) the ratio of placement staff to registered job seekers; h) the average length of time in filling vacancies by the State Employment Service.

As set out in the report, placements made by SES as a share of the total hirings in the labour market was equal to 14% in 2014. The Committee takes note of the low market share of SES and reiterates its request concerning the placements made by SES as a percentage of total employment in the labour market and respective market shares of public and private services. Market share is measured as the number of placements effected as a proportion of total hirings in the labour market. It asks also information to be provided on measures taken to strengthen SES.

With regards to private agencies the report indicates that the conditions under which private agencies can operate are provided by the Law on “Entrepreneurship activities”. The Committee asks the next report for information on licensing, operation of private agencies and co-ordination with public services.

Furthermore, the Committee asks the next report to also contain information on participation of trade union and employers’ organisations in the running of the employment services.

Consequently, given the low rates of both placement rate and placements made by SES as a share of the total hirings in the labour market for the year 2014 and the lack of necessary information on quantitative indicators, the Committee finds that the public employment services do not operate in an efficient manner.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 1§3 of the Charter on the ground that the public employment services do not operate in an efficient manner.

Article 1 - Right to work

Paragraph 4 - Vocational guidance, training and rehabilitation

The Committee takes note of the information contained in the report submitted by Azerbaijan.

Article 1§4 guarantees the right to vocational guidance, continuing vocational training for employed and unemployed persons and specialised guidance and training for persons with disabilities. It is complemented by Articles 9 (right to vocational guidance), 10§3 (right of adult workers to vocational training) and 15§1 (right of persons with disabilities to vocational guidance and training), which contain more specific rights to vocational guidance and training.

As Azerbaijan has not accepted Articles 10§3 and 15§1, the Committee assesses under Article 1§4 the conformity of the situation relating to the right of adult workers to vocational training and the right of persons with disabilities to vocational guidance and training.

Equal treatment

In response to the Committee’s question (Conclusions 2012), the report indicates that foreigners can have access to vocational training, including further education, if they are registered as jobseekers with the State Employment Service. The Committee recalls that Article 1§4 guarantees the right to vocational guidance and continuing vocational training for employed and unemployed persons and specialised guidance and training for persons with disabilities. States must grant access to these services to all those interested and ensure equality of treatment for nationals of other States Parties to the Charter lawfully resident or working regularly on the territory of the Party concerned. In light thereof, the Committee asks whether continuing vocational training, including adult education, is also available to foreign employed persons, without any restrictions related to their length of residence. It reserves in the meantime its position on this point.

Vocational guidance

As regards measures related to vocational guidance, the Committee refers to its assessment under Article 9, in which it considers that the situation is not in conformity with the Charter, on the grounds that it has not been established that the right to vocational guidance is guaranteed. Accordingly, the Committee considers that the situation is not in conformity with Article 1§4 on the same grounds.

Continuing vocational training

The report indicates that vocational training is available to unemployed citizens registered with the State Employment Service. Vocational training courses are conducted on the basis of the education programmes (1-3 months) approved by the Ministry of Education, in cooperation with the Ministry of Labour. In response to the Committee’s question, the report indicates that vocational training teachers are selected on the basis of their work experience and professionalism. The Committee takes note of the information provided in the report concerning the ongoing development of module training material.

Overall, during the reference period (2011-2014), 16 878 persons were involved in vocational training courses, according to the report. The Committee asks whether continuing vocational training, including adult education, is also available to employed persons.

Vocational guidance and training for persons with disabilities

As regards measures related to vocational guidance of persons with disabilities, the Committee refers to its assessment under Article 9 (Conclusions 2016), in which it considers that the situation is not in conformity with the Charter, on the ground that it has not been established that the right to vocational guidance within the labour market is guaranteed to persons with disabilities. Accordingly, the Committee considers that the situation is not in conformity with Article 1§4 on the same ground.

As regards training, the report refers to setting up of a Vocational Rehabilitation Center, which provides training to young people with disabilities in certain professions (computing, tailoring, hairdressing, weaving, art, carpet making etc.). The report does not mention however any initiative taken in respect of training for adult people with disabilities. The Committee accordingly asks whether any measures exist to ensure continuing training of these persons.

The report does not reply to the Committee’s question (Conclusions 2012) as to whether, following the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2008 a domestic legal framework has been developed in accordance and whether there is an overall strategy for the employment and vocational training of people with disabilities. The Committee notes in this respect from the concluding observations of the Committee on the Rights of Persons with Disabilities, adopted in 2014, that further harmonisation efforts remain needed to bring Azerbaijan’s legal order in conformity with its engagements and to adopt a human-rights based model of disability, instead of a medical model. It also notes that, according to the same source, Azerbaijan "should expand its esisting programmes, including vocational training programmes, with a view to enhancing the skills of persons with disabilities to enable them to participate competitively in the open labour market".

The same source furthermore states that "legislation on equality and non discrimination lacks an express prohibition of disability-based discrimination". The Committee recalls in this respect that Article 1§4 requires inter alia the existence of legislation explicitly prohibiting discrimination on the ground of disability in the field of training (Conclusions 2008). It accordingly considers that the situation is not in conformity with Article 1§4 on the ground that there is no legislation explicitly protecting persons with disabilities from discrimination in training.

The Committee notes from the report that, although the number of persons with disabilities attending vocational training has increased from 4 persons in 2011 to 109 in 2014, it remains low. It notes that during the reference period, out of 2386 persons with disabilities who applied to the State Employment Service, a total of 285 persons attended vocational training.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 1§4 of the Charter on the following grounds:

·         it has not been established that the right to vocational guidance is guaranteed;

·         it has not been established that the right to vocational guidance within the labour market is guaranteed to persons with disabilities;

·         there is no legislation explicitly protecting persons with disabilities from discrimination in training.

Article 5 - Right to organise

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established that, in practice, the free exercise of the right to form trade unions is ensured in multinational companies; and that there is an adequate and proportionate compensation to the harm suffered by a worker discriminated against for having joined a trade union (Conclusions 2014, Azerbaijan).

The Committee previously noted from the observation made by the ILO Committee of Experts on the Application of Conventions and Recommendations (ILO-CEACR) that following the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 alleging that despite adequate protection of trade union rights in law, trade union activities in multinational companies are often hampered in practice (Observation (CEACR) – adopted 2011, published 101st ILC session (2012) Right to organise and Collective Bargaining Convention, 1949 (No. 98) – Azerbaijan). The Committee recalled that it had previously noted similar comments made by the ITUC in 2007, which also alleged that employers often delayed negotiations and unions rarely participated in determining wage levels and were often bypassed in the conclusion of bilateral agreements between the Government and multinational enterprises.

The Committee noteed that in its report, the Government indicates that as a result of the activity of the Confederation of Trade Unions of Azerbaijan (CTUA), trade unions have been established in 28 multinational companies. The Government recognizes that the CTUA initiatives to establish trade unions are often not sufficient. To address these issues, the Government organizes, on a periodic basis, seminars and conferences with the participation of multinational companies. Even though some progress has been made through awareness raising activities, no concrete measures have been taken to ensure the right to organise in multinational companies. The Committee therefore concluded that the situation is not in conformity on the ground that it has not been established that, in practice, the free exercise of the right to form trade unions is ensured in multinational companies.

No information is provided on the establishment of trade unions in multinational companies, therefore the Committee concludes that the situation is still not in conformity with the Charter.

As regards compensation for discrimination on grounds of trade union membership, the Committee recalls that Article 16 of the Labour Code prohibits discrimination, inter alia, on grounds of trade union membership, In addition, Article 79 of the Labour Code provides for the prohibition of dismissal due to an employee’s membership in a trade union.

Discrimination on grounds, inter alia of trade union membership may also constitute a criminal offence under the Criminal Code.

The report states that to date there have been no cases before the courts regarding discrimination on grounds of membership or non- membership of a trade union and therefore no compensation has ever been awarded.

The Committee asks to be kept informed of any cases concerning discrimination on grounds of trade union membership. Meanwhile it concludes that the situation is in conformity with the Charter on this point.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 5 of the Charter on the grounds that it has not been established that, in practice, the free exercise of the right to form trade unions is ensured in multinational companies.

Article 6 - Right to bargain collectively

Paragraph 1 - Joint consultation

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established that the promotion of joint consultation between workers and employers on most matters of mutual interest covered by Article 6§1 is ensured (Conclusions 2014, Azerbaijan.)

Under Article 6§1 consultation must cover all matters of mutual interest, and particularly: productivity, efficiency, industrial health, safety and welfare, and other occupational issues (working conditions, vocational training, etc.), economic problems and social matters (social insurance, social welfare, etc.) (Conclusions I (1969), Statement of Interpretation Article 6§1).

The Committee previously noted that in 2012 the National Trilateral Social Council on Safe and Healthy Labour Conditions has been established, to ensure the adoption and implementation of action plans related to health and safety at work and to develop methodological guidelines and recommendations on these issues.

Concerning other matters of mutual interest covered by Article 6§1 such as productivity, efficiency, other occupational issues (working conditions, vocational training, etc.), economic problems and social matters (social insurance, social welfare, etc.) the previous report did not provide any information.

The Committee had also noted a request from the ILO (Observation (CEACR) – adopted 2011, published 101st ILC session (2012) Right to organise and Collective Bargaining Convention, 1949 (No. 98) – Azerbaijan) to take measures to amend its legislation on collective bargaining.

In view of the lack of information and the observation made by ILO-CEACR the Committee concluded that the situation is not in conformity on the ground that it has not been established that the promotion of joint consultation between workers and employers on most matters of mutual interest covered by Article 6§1 is ensured.

The Committee notes that according to the current report a national tripartite commission is foreseen in order to promote joint consultation.

The Committee decides to confine its examination of the issues raised by ILO to Article 6§2 of the Charter. It asks the next report to provide complete information on how joint consultation is promoted between employers and employees on issues of mutual interest, apart from safety and health at work.  It recalls that consultation must cover all matters of mutual interest, and particularly: productivity, efficiency, industrial health, safety and welfare, and other occupational issues (working conditions, vocational training, etc.), economic problems and social matters (social insurance, social welfare, etc.). It also asks for updated information on the new tripartite commission.

Conclusion

The Committee concludes that the situation in Azerbaijan is not inconformity with Article 6§1 of the Charter on the ground that it has not been established that the promotion of joint consultation between workers and employers on most matters of mutual interest covered by Article 6§1 is ensured

Article 6 - Right to bargain collectively

Paragraph 3 - Conciliation and arbitration

The Committee takes note of the information contained in the report submitted by Azerbaijan.In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established that conciliation and arbitration facilities exist in the public sector ( Conclusions 2014, Azerbaijan).

Article 6§3 applies also to the public sector (Conclusions III, (1973), Denmark, Germany, Norway Sweden).

According to Article 259 of the Labour Code the rules for the settlement of collective labour disputes in the civil service are identical to those for the private sector as set out in Article 265 of the Code.

The Committee recalls that it has previously found the situation with regard to the private sector to be in conformity with the Charter.

Conclusion

The Committee finds that the situation in Azerbaijan is in conformity with Article 6§3 of the Charter.

Article 9 - Right to vocational guidance

The Committee takes note of the information contained in the report submitted by Azerbaijan.

As regards the equal treatment of nationals of other States Parties, it notes from the information submitted to the Governmental Committee (Governmental Committee report concerning Conclusions 2012) that, pursuant to Article 7.5 of the Law on employment, “citizens have the right to get from the relevant authority (State Employment Service) free advice, as well as relevant information on vocational guidance, vocational training and in-service education in order to choose their employment, place of work and working conditions”. In addition, pursuant to Article 8.2 of the same Law, the state guarantees support to jobseekers and unemployed citizens in choosing an appropriate work and employment, and provides free vocational guidance, vocational training and in-service education through the relevant authority (State Employment Service). The Committee asks the next report to clarify whether foreign nationals are included in the notion of "citizens" and are accordingly also entitled to free guidance services both in the education system and in the labour market.

Vocational guidance within the education system

The Committee previously found that it had not been established that the right to vocational guidance was guaranteed. It had noted that students of the 9-11 grades from schools of Baku and other big cities and regions were involved in vocational guidance services with the assistance of local agencies of the State Employment Services (SES), but had found no indication in the report concerning expenditure, staffing and the number of beneficiaries of vocational guidance in the education system. It also had reiterated its request for information concerning vocational guidance for the disabled.

It notes from the information submitted to the Governmental Committee (see above) that certain measures have been taken in 2011 in order to develop inter alia vocational guidance within the education system, in accordance with paragraph 2§17 of “The State Program on Implementation of the Employment Strategy of the Republic of Azerbaijan for 2011-2015“, approved by Presidential Decree on 15 November, 2011, No. 1836. As a result, the State Employment Service (SES), under the responsibility of the Ministry of Labour and Social Protection of Population, has provided all secondary schools in urban and rural areas with vocational guidance services and the necessary methodology tools and questionnaire materials.

Several conferences were furthermore organised in all regions of Azerbaijan as from 2012 on “Vocational guidance for the effective provision of employment for youth”, with the participation of heads of regional executive bodies, regional education establishments, employers in the regions, pedagogical staff of regional secondary schools, as well as representatives of local and central media organisations. The report also refers to the vocational guidance events organised in 32 towns by the SES, in cooperation with the American Academy, and involving pedagogical staff, students of 11th grade and their parents (the latter received special methodology tools and booklets concerning their children’ future choice of a profession).

According to the report, the number of beneficiaries of vocational guidance services in the education system has been constantly increasing. In particular, during the reference period 398 195 schoolchildren were involved in vocational guidance activities (starting from 19 902 in 2009, they were already 98 521 in 2012, according to data provided by the authorities to the Governmental Committee). The information submitted to the Governmental Committee pointed out that these activities had been carried out with the resources already available within the local SES offices, without requiring any increase in staffing or expenditure. No information has been however provided on the qualification and number of staff or the level of expenditure involved in these activities. The Committee accordingly reiterates its request for information on this point. It considers in the meantime that it has not been established that the right to vocational guidance is guaranteed.

As regards vocational guidance for people with disabilities, within the education system, the report indicates that such guidance is provided by the Ministry of Education in the "special boarding schools for children with limited health". In these specialised institutions, children from 12 years of age are provided with examples of professions, guidance, vocational training and workshops. The report also refers to a State Programme on inclusive education for 2016-2023, aimed at developing appropriate educational standards, setting-up modern vocational centres as well as regional centres providing advice on educational issues, including vocational guidance and training for people with disabilities. The Committee asks the next report to provide updated information on the implementation of the measures under way, as well as figures on the budgetary resources and qualified staff involved in the provision of vocational guidance to persons with disabilities in the education system and the number of beneficiaries of such services.

Vocational guidance in the labour market

The Committee had previously noted (Conclusions 2012), that vocational guidance in labour market was ensured by local agencies (Employment Centres) of the State Employment Services. It had however considered that it had not been established that the right to vocational guidance was guaranteed, as no information had been provided concerning expenditure, staffing and the number of beneficiaries of vocational guidance in the labour market and whether the vocational guidance on offer satisfied the demand. No information had furthermore been provided concerning vocational guidance for persons with disabilities.

The report reiterates that the State Employment Service and its local agencies provide free vocational guidance for each citizen, in view of their employment, and reaffirms the importance of vocational guidance for the jobseekers, particularly for young people. It also recalls the setting-up, as from 2001, of an on-line service aimed at providing jobseekers with all relevant information (list of professions, interview rules, recommendations on career choice for young people, tests, profiles of 52 professions). The authorities also indicated in their report to the Governmental Committee that relevant measures had been taken in the framework of the “Vocational Guidance Services for Youth” component of the Social Protection Development Project, implemented jointly by the Ministry of Labour and Social Protection of Population and the World Bank. They also indicated that the establishment of new Vocational Guidance Centers in line with international standards was under way and that international experts were involved in the preparation of the relevant Concept Paper. Baku Employment Center had been selected as pilot center to implement these programs. According to the report, the number of beneficiaries of vocational guidance services has been constantly increasing. In particular, during the reference period, 48 064 people (other than schoolchildren) were involved in vocational guidance activities.

The Committee recalls that Article 9 imposes on States Parties to set up and operate a service that helps all persons, free of charge, to solve their problems relating to vocational guidance, that is to assist them in their occupational choice and progress, with due regard to the individual’s characteristics and their relation to occupational opportunity. The right to vocational guidance must be guaranteed both within the school system (information on training and access to training) and within the labour market (information on vocational training and retraining, career planning, etc.). Vocational guidance must be provided:

·         free of charge;

·         by qualified (counsellors, psychologist and teachers) and sufficient staff;

·         to a significant number of persons and by aiming at reaching as many people as possible;

·         and with an adequate budget.

The Committee asks for up-to-date information on these items to be systematically provided in all future reports, especially figures on the resources, staff and number of beneficiaries of vocational guidance in the labour market. In the meantime, it does not find it established that that the right to vocational guidance within the labour market is guaranteed.

As regards vocational guidance for persons with disabilities in the labour market, the authorities indicated in their report to the Governmental Committee that consultations had been conducted with the people and associations concerned. The report does not contain however any information on the follow-up given to these consultations, nor on the expenditure, staffing and number of persons with disabilities who benefited from vocational guidance services in the labour market. The Committee refers to the abovementioned requirements under Article 9 of the Charter and reiterates its request for updated information and data (on the resources, staff and number of beneficiaries) concerning specifically the provision of vocational guidance to persons with disabilities in the labour market. In the meantime it does not find it established that that the right to vocational guidance within the labour market is guaranteed to these persons.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 9 of the Charter on the following grounds:

·         it has not been established that the right to vocational guidance is guaranteed and

·         it has not been established that the right to vocational guidance within the labour market is guaranteed to persons with disabilities.

Article 20 - Right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex

The Committee takes note of the information contained in the report submitted by Azerbaijan.

Equal rights

The Committee recalls that it examines measures relating to maternity protection and family responsibilities under Articles 8 and 27 of the Charter (Conclusions 2015).

The Committee previously noted that according to Section 9 of the Law on Gender Equality equal pay should apply to employees working in the same company with the same specialisation fulfilling work of the same value, irrespective of gender. If an individual believes that discrimination on grounds of sex in matters related to pay has occurred, he/she may request that the employer provide evidence that the wage difference is not based on grounds of gender (Conclusions 2012). Section 16 of the Labour Code prohibits discrimination in employment on the basis of, among others, gender.

The Committee noted previously that during judicial proceedings in discrimination cases there is no shift in the burden of proof and therefore concluded that the situation was not in conformity with the Charter (Conclusions 2012 on Article 20). As noted under the conclusion on Article 1§2, the report indicates that each party to the proceedings shall provide evidence for their claims and objections and therefore there has been no change to the situation with regard to the shift in the burden of proof. The Committee recalls that the burden of proof must be shifted (Conclusions 2004, Romania, Article 20). The shift in the burden of proof consists in ensuring that where a person believes he or she has suffered discrimination on grounds of sex and establishes facts which make it reasonable to suppose that discrimination has occurred, the onus is on the defendant to prove that there has been no infringement of the principle of equal treatment (Conclusions XIII-5 (1997), Statement of Interpretation on Article 1 of the Additional Protocol). Thus the Committee maintains its conclusion of non-conformity on this point.

The Committee recalls that it previously found the situation not to be in conformity on the ground that legislation prohibits the employment of women in underground mining and other labour intensive jobs which is contrary to the principle of equality as enshrined in Article 20 of the Charter (Conclusions 2008 and 2012). The report does not provide any information in this sense. The Committee notes from the Report of the Governmental Committee concerning Conclusions 2012 that the Labour Code is in process of revision and that Section 241 will be amended and these prohibitions repealed. However the Committee notes that during the reference period these provisions remained in force, so the situation is still not in conformity with the Charter.

The report indicates that, as noted in the previous reports, no cases of discrimination on the grounds of sex were found and subsequently no court cases regarding discrimination at work on the grounds of sex was identified.

The Committee notes that in its Concluding Observations, CEDAW noted that there are still few cases involving sex- and gender-based discrimination in the national courts (CEDAW, Concluding Observations on the fifth periodic report of Azerbaijan, CEDAW/C/AZE/CO/5, 12 March 2015, paras. 7-9). It further notes that a total of 16,341 cases on violation of labour law were identified by the State Labour Inspectorate at various enterprises, offices and organization in 2012 and 51 out of them were associated with violations of women rights (CEDAW, List of issues and questions in relation to the fifth periodic report of Azerbaijan, Replies of Azerbaijan Addendum, CEDAW/C/AZE/Q/5/Add.1, 14 November 2014, paragraph 16). The Committee asks the next report to clarify this point, in particular with regard to gender discrimination in employment.

The Committee reiterates its request for information on the cases before the courts or the Ombudsman alleging gender discrimination in employment.

The Committee noted previously that there is no ceiling with regard to compensation entitled to victims of gender discrimination (Conclusions 2012).

In its previous conclusion, the Committee asked whether in equal pay litigation cases, it was possible to make comparison of pay and jobs across enterprises (Conclusions 2012).

The Committee recalls that it examines the right to equal pay under Article 20 and Article 4§3 of the Charter, and does so therefore every two years (under thematic group 1 “Employment, training and equal opportunities”, and thematic group 3 “Labour rights”). The Committee recalls that equal treatment between women and men includes the issue of equal pay for work of equal value. Usually, pay comparisons are made between persons within the same undertaking/company. However, there may be situations where, in order to be meaningful, this comparison can only be made across companies/undertakings. Therefore, the Committee requires that it be possible to make pay comparisons across companies. It notes that at the very least, legislation should require pay comparisons across companies in one or more of the following situations:

·         cases in which statutory rules apply to the working and pay conditions in more than one company;

·         cases in which several companies are covered by a collective works agreement or regulations governing the terms and conditions of employment;

·         cases in which the terms and conditions of employment are laid down centrally for more than one company within a holding (company) or conglomerate (Conclusions 2012, Statement of Interpretation on Article 20).

The Committee recalls that in equal pay litigation cases the legislation should allow pay comparisons across companies only where the differences in pay can be attributed to a single source. For example, the Committee has considered that the situation complied with this principle when in equal pay cases comparison can be made with a typical worker (someone in a comparable job) in another company, provided the differences in pay can be attributed to a single source (Conclusions 2012, Netherlands, Article 20) or when pay comparison is possible for employees working in a unit composed of persons who are in legally different situations if the remuneration is fixed by a collective agreement applicable to all entities of the unit (Conclusions 2014, France, Article 4§3).

In the light of the above mentioned, the Committee reiterates its question whether in Azerbaijan in equal pay litigation cases it is possible to make comparisons of pay outside the company directly concerned.

Equal opportunities

The report indicates that national unemployment level among women is 5.9% (among men- 4.0%), with 7.0% (among men- 4.9%) in the urban areas, and 4.9% (among men- 3.1%) in the rural areas. There are also some differences in the employment structure of women and men per types of economic activity. The male employment rate remained relatively stable (2011; 68.2% – 2014; 69.8%) whereas the female employment rate increased considerably from 52.1% (2011) to 63.6% (2014). Gender studies show that there is considerable gender segregation in the labour market.

The report indicates that the ratio of women’s average monthly salary to men’s was 47.5%. The Committee notes that the gender wage gap is considerable. It asks the next report to provide detailed information on the position of women in employment and training as well as on gender pay gap. Meanwhile, it considers that the situation is not in conformity with Article 20 of the Charter on the ground that the unadjusted gender pay gap is manifestly too high.

The Committee notes that CEDAW expressed concern in its Concluding Observations regarding the low unemployment rates for women, the continued horizontal and vertical segregation in the labour market, whereby women are concentrated in low paid and informal jobs; the wide gender pay gap; the lack of childcare facilities; and the lower pension benefits for women as compared with men (CEDAW, Concluding Observations on the fifth periodic report of Azerbaijan, CEDAW/C/AZE/CO/5, 12 March 2015, paras. 30-31).

In its previous conclusion (Conclusions 2012), the Committee asked information on all positive actions measures to promote gender equality, including equal pay for work of equal value.

The report mentions that solutions for the problems regarding women’s employment and gender equality are reflected in the “Employment Strategy of Azerbaijan for 2006-2015” (approved by Presidential Decree No. 1068/2005) and of the “State Program on the implementation of the employment strategy of Azerbaijan for 2011-2015” (approved by the Presidential Decree No. 1836/2011). The report does not indicate what are the concrete solutions envisaged to tackle the problems that women are facing in employment.

Since 2011 State Committee of the Republic of Azerbaijan on Family, Women and Children Issues has been implementing jointly with UNDP a technical support project on “Promoting the role of urban and rural women in the economic and social spheres of life”. Regular events and trainings dedicated to gender equality are held in Baku and in the regions in the framework of this project. The booklet entitled “Information on the Law on Provision of Gender equality” and 15 questions and answers pocket – book on “Law on Provision of Gender equality” have been published in the framework of this project.

The Committee asks the next report to provide updated information on the concrete measures and activities taken to promote gender equality, including equal pay for work of equal value, to overcome gender segregation in the labour market and to reduce the gender pay gap, as well as information on the results achieved.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 20 of the Charter on the following grounds:

·         legislation does not provide for a shift in the burden of proof in gender discrimination cases;

·         women are not permitted to work in all professions which constitutes discrimination based on sex;

·         the unadjusted gender pay gap is manifestly too high.

Article 22 - Right of workers to take part in the determination and improvement of working conditions and working environment

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established workers and/or their representatives have an effective right to participate in the decision-making process within undertakings with regard to working conditions, work organisation or the working environment; and legal remedies are available to workers in the event of infringements of their right to take part in the determination and improvement of working conditions and the working environment (Conclusions 2014, Azerbaijan).

Workers and/or their representatives (trade unions, worker’s delegates, health and safety representatives, works councils) must be granted an effective right to participate in the decision-making process and the supervision of the observance of regulations in all matters referred to in this provision, such as the determination and improvement of the working conditions, work organisation and working environment (Conclusions 2007, Armenia, Italy).

Workers must have legal remedies when these rights are not respected. There must also be sanctions for employers which fail to fulfil their obligations under this Article (Conclusions 2003, Bulgaria).

The report fails to provide any information specifically addressing the above mentioned issues.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 22 of the Charter on the grounds that it has not been established that:

·         workers and/or their representatives have an effective right to participate in the decision-making process within undertakings with regard to working conditions, work organisation or the working environment;

·         legal remedies are available to workers in the event of infringements of their right to take part in the determination and improvement of working conditions and the working environment.

Article 24 - Right to protection in case of dismissal

The Committee takes note of the information contained in the report submitted by Azerbaijan.

Scope

In reply to the Committee question on whether all categories of employees are covered by dismissal protection, except for those on probationary period, the report states that Article 77 of the Labour Code which establishes guarantees for workers in case of termination of employment apply to all categories of workers.

Obligation to provide valid reasons for termination of employment

The Committee recalls that Article 24 establishes in an exhaustive manner the valid grounds on which an employer can terminate an employment relationship, namely:

·         those connected with the capacity or conduct of the employee;

·         those based on the operational requirements of the undertaking, establishment or service (economic reasons).

The Committee further recalls that according to the Appendix to the Charter, for the purposes of Article 24 the term ‘termination of employment’ means termination of employment at the initiative of the employer. Therefore, situations where a mandatory retirement age is set by statute, as a consequence of which the employment relationship automatically ceases by operation of law, do not fall within the scope of this provision.

The Committee considers that under Article 24 dismissal of the employee at the initiative of the employer on the ground that the former has reached the normal pensionable age (age when an individual becomes entitled to a pension) is contrary to the Charter, unless the termination is properly justified with reference to one of the valid grounds expressly established by this provision of the Charter.

As regards termination of employment on the grounds of age, the report indicates that existing legislation does not consider the termination of employment for workers reaching pension age (women at 60, men at 63). The Committee understands that reaching retirement age is not a reason for the employer to terminate the contract. In addition, according to clause e) of Article 47, fixed-term employment contract can be signed with the worker who reached pension age and who is willing to work. Furthermore for civil servants aged 65-70 (65 is the age ceiling at civil service) working at State-funded enterprise, contracts can be extended five times, each time for a maximum of one year, with the consent of the employee and in accordance with the criteria defined in Article 32-1.8 of the Law on Civil Service (absence of administrative reproof against the civil servant throughout the employment period, academic degree or rank attainments, state rewarding with government prize, three times of successful pass of attestation).

The Committee understands that 65 is the mandatory retirement age in civil service and not a ground for the employer to terminate employment contract, therefore the Committee asks for confirmation of that understanding in next report.

The Committee notes in the report that the contract with the workers having special services in the development of science, culture, health and education fields can be prolonged for an indefinite number of times with due consideration of the criteria determined by the Cabinet of Ministers of the Republic of Azerbaijan.The Committee asks whether for this category of workers there is any mandatory retirement age and, if not, whether reaching the retirement age is a ground for termination.

Prohibited dismissals

The Committee notes that that there have been no changes in the law regulating the termination in case of filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities  and temporary absence from work due to illness or injury. The Committee wishes to be informed on this point in the next report.

Remedies and sanctions

The Committee notes that there have been no changes to the situation as earlier found to be in conformity.

Conclusion

Pending receipt of information, the Committee concludes that the situation in Azerbaijan is in conformity with Article 24 of the Charter.

Article 26 - Right to dignity in the workplace

Paragraph 2 - Moral harassment

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established that employees are given appropriate and effective protection against moral (psychological) harassment in the workplace or in relation to work (Conclusions 2014, Azerbaijan).

Under Article 26§2 victims of harassment must have effective judicial remedies to seek reparation for pecuniary and non-pecuniary damage. These remedies must, in particular, allow for appropriate compensation of a sufficient amount to make good the victim’s pecuniary and non-pecuniary damage and act as a deterrent to the employer.

In addition, the persons concerned must have a right to be reinstated in their post when they have been unfairly dismissed or pressured to resign for reasons linked to harassment (Conclusions 2003, Bulgaria, Conclusions 2005, Republic of Moldova).

The Committee previously pointed out that the effectiveness of the legal protection against moral (psychological) harassment depends on how the domestic courts interpret the law repeated its request for relevant examples of case law in the field of moral (psychological) harassment (Conclusions 2014, Azerbaijan).

The current report confirms that victims of moral/psychological harassment can claim damages, however no further information is provided. Therefore the Committee is obliged to reiterate its previous conclusion.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 26§2 of the Charter on the ground that it has not been established that in Azerbaijan employees are given appropriate and effective protection against moral (psychological) harassment in the workplace or in relation to work.

Article 28 - Right of workers' representatives to protection in the undertaking and facilities to be accorded to them

In application of the reporting system adopted by the Committee of Ministers at the 1196^th meeting of the Ministers’ Deputies on 2-3 April 2014, States were invited to report by 31 October 2015 on conclusions of non-conformity for repeated lack of information in Conclusions 2014.

The Committee takes note of the information submitted by Azerbaijan in response to the conclusion that it had not been established that the protection granted to workers’ representatives is extended for a reasonable period after the end of period of their mandate. (Conclusions 2014, Azerbaijan).

Under Article 28 the protection afforded to worker representatives should extend for a period beyond the mandate. To this end, the protection afforded to workers shall be extended for a reasonable period after the effective end of period of their office( Conclusions 2010, Statement of Interpretation on Article 28). The extension of the protection granted to workers’ representatives to at least six months after the end of their mandate is considered reasonable (Conclusions 2010, Bulgaria).

The report fails to provide any information specifically addressing the issues.

Conclusion

The Committee concludes that the situation in Azerbaijan is not in conformity with Article 28 of the Charter on the ground that it has not been established that the protection granted to workers’ representatives is extended for a reasonable period after the end of period of their mandate.

January 2017

European Social Charter

European Committee of Social Rights

Conclusions 2016

BELGIUM

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