July 2019
SECOND REPORT
ON THE NON-ACCEPTED PROVISIONS OF THE EUROPEAN SOCIAL CHARTER
ARMENIA
TABLE OF CONTENTS
OPINION………………………………………………………………………………………………3
Appendix I: The situation of Armenia with respect to the European Social Charter………….4
Appendix II: Declaration of the Committee of Ministers on the 50th Anniversary of the
European Social Charter…………………………………………………………………………….13
OPINION
With respect to the procedure provided by Article 22 of the 1961 Charter – examination of non-accepted provisions - the Committee of Ministers in December 2002 decided that "states having ratified the Revised European Social Charter should report on the non-accepted provisions every five years after the date of ratification" and had "invited the European Committee of Social Rights to arrange the practical presentation and examination of reports with the states concerned" (Decision of the Committee of Ministers of 11 December 2002).
Following this decision, it was agreed that the European Committee of Social Rights examines - in a meeting or by written procedure - the actual legal situation and the situation in practice in the countries concerned, with a view to securing a higher level of acceptance. This review would be done for the first time five years after the ratification of the revised European Social Charter, and every five years thereafter, to assess the situation on an ongoing basis and to encourage States to accept new provisions. Indeed, experience has shown that Governments tend to overlook that the selective acceptance of the provisions of the Charter should be a temporary phenomenon.
Armenia accepted 67 of the 98 paragraphs of the Charter. The State has neither signed nor ratified the Additional Protocol providing for a system of collective complaints.
As Armenia ratified the Revised Charter on 21 January 2004, procedure provided by Article 22 of the 1961 Charter was applied for the first time in 2009, in the context of a meeting between the European Committee of Social Rights delegation and the Armenian authorities.
The second meeting on the non-accepted provisions of the European Social Charter was organised jointly by the Department of the European Social Charter and the Ministry of Labour and Social Affairs of the Republic of Armenia on 30 September 2015.
Following this meeting, the European Committee of Social Rights concluded that, although further analysis was obviously needed, from the point of view of the situation in law and in practice there were no obstacles to the acceptance of the following provisions: Articles 9, 10 (§1,3 and 4), 13§3, 14§1 and 15§1.
With a view to carrying out the procedure in 2019, the European Committee of Social Rights decided, at its 300th session, to invite Armenia to provide written information on possible progress achieved towards accepting additional provisions and, if appropriate, the reasons for the delay in accepting them.
In response to this request, sent on 16 April 2019, the Ministry of Labour and Social Affairs of Armenia referred to the meeting held in 2015 and indicated that a large-scale reform was being implemented in the field of labour and social protection. It confirmed in this context, that the conclusions and recommendations of the representatives of the European Committee of Social Rights, presented during the above mentioned meeting, were also taken into account in order to implement the reforms in line with international standards and to examine the possibility of acceptance of new provisions of the Charter.
The Committee welcomes these developments, but it looks forward to acceptance by Armenia in the near future of additional provisions of the Charter, at least of those identified in 2015 as posing no problems for acceptance. Furthermore, the Committee encourages Armenia to consider the possibility of accepting the collective complaints procedure. In this respect, the Committee refers to the Declaration of the Committee of Ministers on the 50th anniversary of the European Social Charter (Appendix II).
The next examination of the provisions not accepted by Armenia will take place in 2024.
APPENDIX I:
The situation of Armenia with respect to the European Social Charter
― Armenia and the European Social Charter ―
Signatures, ratifications and accepted provisions
Armenia ratified the revised European Social Charter on 21/01/2004 and has accepted 67 of the 98 paragraphs.
It has not accepted System of Collective Complaints.
The Charter in domestic law
Automatic incorporation into domestic law.
Table of accepted provisions
|
1.1 |
1.2 |
1.3 |
1.4 |
2.1 |
2.2 |
2.3 |
2.4 |
2.5 |
2.6 |
2.7 |
3.1 |
|
3.2 |
3.3 |
3.4 |
4.1 |
4.2 |
4.3 |
4.4 |
4.5 |
5 |
6.1 |
6.2 |
6.3 |
|
6.4 |
7.1 |
7.2 |
7.3 |
7.4 |
7.5 |
7.6 |
7.7 |
7.8 |
7.9 |
7.10 |
8.1 |
|
8.2 |
8.3 |
8.4 |
8.5 |
9 |
10.1 |
10.2 |
10.3 |
10.4 |
10.5 |
11.1 |
11.2 |
|
11.3 |
12.1 |
12.2 |
12.3 |
12.4 |
13.1 |
13.2 |
13.3 |
13.4 |
14.1 |
14.2 |
15.1 |
|
15.2 |
15.3 |
16 |
17.1 |
17.2 |
18.1 |
18.2 |
18.3 |
18.4 |
19.1 |
19.2 |
19.3 |
|
19.4 |
19.5 |
19.6 |
19.7 |
19.8 |
19.9 |
19.10 |
19.11 |
19.12 |
20 |
21 |
22 |
|
23 |
24 |
25 |
26.1 |
26.2 |
27.1 |
27.2 |
27.3 |
28 |
29 |
30 |
31.1 |
|
31.2 |
31.3 |
Grey = Accepted provisions |
|||||||||
The European Committee of Social Rights (“the Committee”) examines the situation of non-accepted provisions of the Revised Charter every 5 years after the ratification. Meetings were held in 2009 and in 2015. The Committee adopted one report concerning Armenia in April 2016.
The information provided and the discussions conducted during the meeting confirmed that there are no major obstacles in law and in practice to Armenia’s acceptance of several additional provisions of the Charter, including provisions such as Articles 9, 10(§§1,3 and 4), 13§3, 14§1 and 15§1. As regards Articles 4§1, 11§1, the Committee considered that the current legal situation and practice in Armenia may still raise a problem of conformity. As regards other provisions examined at the meeting, such as Articles 10§5, 11§2 and 11§3, the Committee considered that further information is necessary to assess the situation properly.
Further information on the reports on non-accepted provisions is available on the relevant webpage.
Monitoring the implementation of the European Social Charter [1]
I. Reporting system [2]
Reports submitted by Armenia
Between 2006 and 2019, Armenia has submitted 12 reports on the application of the Revised Charter.
The 12th report, submitted on 28/02/2018 covers the accepted provisions of the Revised Social Charter relating to thematic group 3 "Labour rights" (Articles 2, 4, 5, 6, 21, 22, 26, 28, 29).
Conclusions with respect to these provisions have been published in March 2019.
The 13th report, which was submitted on 27/03/2019, concerns the accepted provisions relating to Thematic group 4 “Children, families, migrants”, namely:
• the right of children and young persons to protection (Article 7),
• the right of employed women to protection (Article 8),
• the right of the family to social, legal and economic protection (Article 16),
• the right of mothers and children to social and economic protection (Article 17),
• the right of migrant workers and their families to protection and assistance (Article 19),
• the right of workers with family responsibilities to equal opportunities and equal treatment (Article 27),
• the right to housing (Article 31).
Conclusions with respect to these provisions will be published in January 2020.
Situations of non-conformity [3]
Thematic Group 1 « Employment, training and equal opportunities » - Conclusions 2016
It has not been established that employment policy efforts have been adequate in combatting unemployment and promoting job creation.
- 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§3 - Right to work - Free placement services
It has not been established that free placement services operate in an efficient manner.
It has not been established that persons with disabilities are guaranteed effective protection against discrimination in employment.
- 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.
The termination of employment on the sole ground that the person has reached the pensionable age, which is permitted by law, is not justified.
Thematic Group 2 « Health, social security and social protection » - Conclusions 2017
► Article 3§1 – Right to safe and healthy working conditions – Safety and health regulations
There is no clearly defined policy on occupational health and safety.
► Article 12§1 – Existence of a social security system
- It has not been established that the social security system ensures an adequate health care coverage;
- The level of social invalidity pension is inadequate;
- It has not been established that the level of unemployment benefits is adequate.
► Article 13§1 – Right to social and medical assistance – Adequate assistance for every person in need
The level of social assistance paid to a single person without resources is not adequate.
Thematic Group 3 « Labour rights » - Conclusions 2018
► Article 2§1 – Right to just conditions of work – Reasonable working time
The daily working time of some categories of workers can be extended to 24 hours.
► Article 2§4 - Right to just conditions of work - Elimination of risks in dangerous or unhealthy occupations
Τhere is no prevention policy regarding the risks in inherently dangerous and unhealthy occupations.
► Article 4§2 – Right to a fair remuneration – Increased remuneration for overtime work
The legislation does not guarantee an increased time off in lieu of remuneration for overtime.
► Article 4§3 – Right to a fair remuneration – Non-discrimination between women and men with respect to remuneration
- Τhe 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;
- Τhe enforcement of the right to equal pay is not effective, as demonstrated by the persistently high gender pay gap.
► Article 4§4 – Right to a fair remuneration – Reasonable notice of termination of employment
Νo notice period is provided for in certain cases of dismissal due to minor disciplinary offences.
► Article 4§5 – Right to a fair remuneration – Limits to deduction from wages
- Deductions from wages may deprive employees with the lowest pay and their dependants of their means of subsistence;
- Withdrawal of wages in case of flawed products, for which the employee is responsible, deprives employees and their dependants of their means of subsistence.
► Article 5 – Right to organise
- The minimum membership requirements set for forming trade unions and employers’ organisations are too high;
- The following categories of workers cannot form or join trade unions of their own choosing: employees of the Prosecutor’s Office, civilians employed by the security service, all members of the police force (including civilians), self-employed workers, those working in liberal professions and informal sector workers.
► Article 6§2 – Right to bargain collectively – Negotiation procedures
It has not been established that the promotion of collective bargaining is sufficient.
► Article 6§4 – Right to bargain collectively – Collective action
- The percentage of workers required to call a strike is too high;
- Strikes are prohibited in the energy supply services;
- All members of the police are prohibited from striking;
- Restrictions on the right to strike in certain sectors are too extensive and go beyond the limits permitted by Article G.
► Article 28 – Right of workers’ representatives to protection in the undertaking and facilities to be accorded to them
- The protection granted to workers’ representatives is not extended for a reasonable period after the expiration of their mandate;
- It has not been established that:
- workers’ representatives are effectively protected against prejudicial acts other than dismissal;
- facilities granted to workers’ representatives are adequate.
Thematic Group 4 « Children, families, migrants » - Conclusions 2015
► Article 7§1 – Right of children and young persons to protection – Prohibition of employment under the age of 15 and Article 7§3 – Right of children and young persons to protection – Prohibition of employment of children subject to compulsory education
- The definition of light work is not sufficiently precise;
- The daily and weekly working time for children under the age of 15 is excessive and therefore cannot be qualified as light work
► Article 7§5 – Right of children and young persons to protection – Fair Pay
The young workers’ wages are not fair.
► Article 17§1 – Right of children and young persons to social, legal and economic protection – Assistance, education and training
Not all forms of corporal punishment of children are prohibited in the home.
► Article 17§2 – Right of children and young persons to social, legal and economic protection – Free primary and secondary education; regular attendance at school
The net enrolment and attendance rates in the secondary education are low.
► Article 19§2 – Right of migrant workers and their families to protection and assistance – Departure, journey and reception
No appropriate measures have been taken to facilitate the departure, journey and reception of foreign workers (Conclusions 2017).
► Article 19§6 – Right of migrant workers and their families to protection and assistance – Family reunion There is no right of review of a decision rejecting an application for family reunion before an independent body.
► Article 19§10 – Right of migrant workers and their families to protection and assistance – Equal treatment for the self-employed
The grounds of non-conformity under Articles 19§2, 19§4, 19§5, 19§6, 19§7, 19§8, and 19§11 apply also to self-employed migrants.
► Article 19§11 – Right of migrant workers and their families to protection and assistance – Teaching language of host state
Teaching of the Armenian language is not organised or promoted sufficiently for migrant workers or their adult family members.
The Committee has been unable to assess compliance with the following provisions and has invited the Armenian Government to provide more information in the next report:
Thematic Group 1 « Employment, training and equal opportunities »
|
► Article 18§2 |
- Conclusions 2016 |
Thematic Group 2 « Health, social security and social protection »
|
► Article 12§3 |
- Conclusions 2017 |
|
► Article 13§2 |
- Conclusions 2017 |
|
► Article 14§2 |
- Conclusions 2017 |
Thematic Group 3 « Labour rights »
|
► Article 6§1 |
- Conclusions 2018 |
Thematic Group 4 « Children, families, migrants »
|
► Article 7§7 |
- Conclusions 2015 |
||
|
► Article 7§10 |
- Conclusions 2017 |
||
|
► Article 19§3 |
- Conclusions 2015 |
||
|
► Article 19§8 |
- Conclusions 2017 |
||
|
► Article 19§12 ► Article 27§3 |
- Conclusions 2015 - Conclusions 2017 |
||
II. Examples of progress achieved in the implementation of rights under the Charter
(non-exhaustive list)
Thematic Group 1 « Employment, training and equal opportunities »
► 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.
► 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.
Thematic Group 2 « Health, social security and social protection »
► On 1st August 2015, the Government, the Confederation of Trade Unions of Armenia and the Republican Union of Employers of Armenia concluded the Republican Collective Agreement with a view to ensure health and safety of employees during employment. It prescribes the obligations of the parties to social partnership, which includes the improvement of the role of trade unions, as well as the legislation for the purpose of increasing the economic interest and liability of employers, assistance in the drafting and introduction of the rules and norms for ensuring the safety and health of employees, promotion of development of the policy targeted at work safety within organisations, and the introduction of modern systems for monitoring of working conditions.
► Article 148 of the Labour Code has been amended (Law No. HO-96-N of 22 June 2015) and henceforth provides that pregnant women and employees taking care of a child under the age of three may be engaged in night work only with their consent after undergoing a preliminary medical examination and submitting a medical opinion to the employer.
► The adoption, in 2011 and 2012 of a package of social security services, including compulsory medical insurance, for civil servants and employees working in state non-commercial organisations operating in the fields of education, culture and social security (Decisions No. 1923-N of 29 December 2011 and No. 1691-N of 27 December 2012).
► The extension, in 2015, of free medical care to include emergency heart surgery.
► The increase, as from 2014, of invalidity pensions of the first and second group of disability.
► The Committee notes from the report that in 2014 the Law ’On state benefits’ entered into force and the Law "On social assistance" entered into force on 1 January 2015.In the course of 2012-2015, changes were introduced to the system of family (or social) benefits, mainly concerning the improvement of the procedure and administration of assessment of the level of indigence of families. As a result, families with low income, especially those with a child also acquire the right to family (or social) benefit.
Thematic Group 3 « Labour rights »
Thematic Group 4 « Children, families, migrants »
► The Labour Code as amended by Law No HO-117-N of 24 June 2010, in its Article 17 (2(1)) states that persons between the ages of 14 and 16 may be involved only in temporary works not causing damage to health, safety, education and morality.
► Article 170 of the Labour Code has been amended by Law No. HO-117-N of 24 June 2010 and it now provides that "the replacement (giving-up) of annual holiday for financial compensation was not allowed, with the only exception of the situation when the employment contract is terminated.
► Article 258(3) of the Labour Code, governing nursing breaks, was amended in 2010 (Law No. HO-117-N of 24 June 2010) and now applies to all employees.
► Amendments to the Law “On general education” were introduced in 2012, which provide for inclusive education for children with special needs.
► In December 2013, a new Law "On employment" was adopted. The new law introduces major new programmes which were not contained in the previous legal regulations. Programmes envisaged by the new Law include the organisation of vocational training, assistance in changing employment and the organisation of employment experience for persons with no professional work experience.
APPENDIX II:
Declaration of the Committee of Ministers on the 50th Anniversary of the
European Social Charter
Draft Declaration of the Committee of Ministers
on the 50th anniversary of the European Social Charter
(Adopted by the Committee of Ministers on …
at the … meeting of the Ministers’ Deputies)
The Committee of Ministers of the Council of Europe,
Considering the European Social Charter, opened for signature in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996 (“the Charter”);
Reaffirming that all human rights are universal, indivisible and interdependent and interrelated;
Stressing its attachment to human dignity and the protection of all human rights;
· Emphasising that human rights must be enjoyed without discrimination;
· Reiterating its determination to build cohesive societies by ensuring fair access to social rights, fighting exclusion and protecting vulnerable groups;
· Underlining the particular relevance of social rights and their guarantee in times of economic difficulties, in particular for individuals belonging to vulnerable groups;
On the occasion of the 50th anniversary of the Charter,
1. Solemnly reaffirms the paramount role of the Charter in guaranteeing and promoting social rights on our continent;
2. Welcomes the great number of ratifications since the Second Summit of Heads of States and Governments where it was decided to promote and make full use of the Charter, and calls on all those member states that have not yet ratified the revised European Social Charter to consider doing so;
3. Recognises the contribution of the collective complaints mechanism in furthering the implementation of social rights, and calls on those members states not having done so to consider accepting the system of collective complaints;
4. Expresses its resolve to secure the effectiveness of the Social Charter through an appropriate and efficient reporting system and, where applicable, the collective complaints procedure;
5. Welcomes the numerous examples of measures taken by States Parties to implement and respect the Charter, and calls on governments to take account, in an appropriate manner, of all the various observations made in the Conclusions of the European Committee of Social Rights and in the reports of the Governmental Committee;
6. Affirms its determination to support States Parties in bringing their domestic situation into conformity with the Charter and to ensure the expertise and independence of the European Committee of Social Rights;
7. Invites member states and the relevant bodies of the Council of Europe to increase their effort to raise awareness of the Charter at national level amongst legal practitioners, academics and social partners as well as to inform the public at large of their rights.
[1]The European Committee of Social Rights (“the Committee”) monitors compliance with the Charter under two procedures, the reporting system and the collective complaints procedure, according to Rule 2 of the Committee’s rules: « 1. The Committee rules on the conformity of the situation in States with the European Social Charter, the 1988 Additional Protocol and the Revised European Social Charter. 2. It adopts conclusions through the framework of the reporting procedure and decisions under the collective complaints procedure ».
Further information on the procedures may be found on the HUDOC database and in the Digest of the case law of the Committee.
[2] Following a decision taken by the Committee of Ministers in 2006, the provisions of the Charter have been divided into four thematic groups. States present a report on the provisions relating to one of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once every four years.
Following a decision taken by the Committee of Ministers in April 2014, States having accepted the collective complaints procedure are required, in alternation with the abovementioned report, to provide a simplified report on the measures taken to implement the decisions of the Committee adopted in collective complaints concerning their country. The alternation of reports is rotated periodically to ensure coverage of the four thematic groups.
Detailed information on the Reporting System is available on the relevant webpage. The reports submitted by States Parties may be consulted in the relevant section.
[3] Further information on the situations of non-conformity is available on the HUDOC database.