Eliminating discrimination
against indigenous and tribal peoples
in employment and occupation
A Guide to ILO Convention No. 111
Eliminating discrimination
against indigenous and tribal
peoples in employment
and occupation
A Guide to ILO Convention No. 111
Prepared by PRO169 and the Equality Team,
international labour STANDARDS DEPARTMENT
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First published 2007
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Guide to Convention No. 111
for indigenous peoples
Preface
T
his Guide on the Discrimination (Employment and Occupation) Convention,
1958 (No. 111) for indigenous peoples is part of a broader effort by the ILO to
support the development and implementation of national laws and policies guided by
international labour and human rights standards.
Convention No. 111 provides an important framework for promoting the rights of
indigenous women and men to equality and decent work in line with the Indigenous and
Tribal Peoples Convention, 1989 (No. 169) and the 2007 United Nations Declaration
on the Rights of Indigenous Peoples. Indigenous peoples’ equal access to decent work
that respects their needs and aspirations is not only a matter of human rights, it is
crucial to the attainment of international and national development objectives.
The Guide is intended to serve indigenous peoples and their representatives as a
source of information and a tool for engaging with policy and decision makers. At the
same time it is a tool for the broader development community, including international
and national development professionals.
The publication of this Guide is the result of a collaborative effort of the Project to
Promote ILO Policy on Indigenous and Tribal Peoples (PRO169) and the Equality team
in the ILO’s International Labour Standards Department, bringing together experience
gathered in the context of technical cooperation activities and standards supervision.
The Guide has been written by Martin Oelz and Birgitte Feiring, with the support of
Lelia Jimenez Bartlett and published with the support of DANIDA.
iii
iv
Table of contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Essay on The age discrimination in employment act
Part 1625 of the Code of Federal Regulations, Title 29, Chapter XIV is the Age Discrimination in Employment Act (ADEA) specifies that it is unlawful for a covered employer to discriminate in "hiring or in any other way by giving preference because of age between individuals 40 and over." Essentially this act forbids firing, refusing to hire or to promote, or treating an individual differently ...
1
Part 1: Discrimination against indigenous and tribal peoples
in employment and occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Who are indigenous and tribal peoples? . . . . . . . . . . . . . . . . . . . . . . .
3
Diversity of situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Restrictions on engaging in traditional occupations
(access to lands and resources) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Discrimination in employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Discrimination against indigenous women . . . . . . . . . . . . . . . . . . . . .
6
Internal discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Part 2: The Discrimination (Employment and Occupation)
Convention, 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
Who is covered by the Convention? . . . . . . . . . . . . . . . . . . . . . . . . .
9
What is discrimination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
What is meant by “employment and occupation”? . . . . . . . . . . . . . . . .
12
What are special measures? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
What are the State’s obligations under the Convention? . . . . . . . . . . . .
16
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Checklist 1:
Identifying discriminatory laws, policies and practices. . . . . . . . . . . . .
18
Checklist 2:
Strengthening national policy to eliminate
discrimination against indigenous and tribal peoples . . . . . . . . . . . . . .
20
v
A Guide to ILO Convention No. 111
Part 3: The ILO’s supervisory system . . . . . . . . . . . . . . . . . . . . . . . .
The regular monitoring of ILO Conventions . . . . . . . . . . . . . . . . . . .
The Essay on Minority Discrimination In A Work Place
This current issue is based on the articles in the National Post on June 16,2000 "Coca Cola Hit With New Race Bias Suit". This article refers to the employment discrimination on the basis of race and colour. Coca cola company was slapped with a new racial discrimination lawsuit filed against the company, after its settlement involving a similar discrimination suit. Lawyers had filed this race- ...
Special procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Can indigenous peoples participate in the supervision
of ILO Conventions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
26
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
Annex 1: ILO Convention No. 111 . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Annex 2: ILO Recommendation No. 111 . . . . . . . . . . . . . . . . . . . . . .
vi
23
35
26
Introduction
“… all human beings, irrespective of race, creed or sex, have the right
to pursue both their material well-being and their spiritual development
in conditions of freedom and dignity, of economic security and equal
opportunity… ”
Declaration of Philadelphia, 1944
T
he International Labour Organization (ILO) is the United Nations system’s
specialized agency mandated to promote lasting peace through social justice. The
protection of workers’ rights and the promotion of decent work opportunities are at
the core of the ILO’s Agenda. As stated in the Declaration of Philadelphia, which is
an integral part of the ILO’s Constitution, the principle of equal treatment and equal
opportunity is a major concern of the ILO. The elimination of discrimination in
employment and occupation has also been recognized in the 1998 ILO Declaration on
Fundamental Principles and Rights at Work as a fundamental human right that all ILO
Members must respect, promote and realize.
Most States have accepted international obligations to achieve the realisation
of the right to decent work, without discrimination of any kind. 1 Freedom from
discrimination in all aspects of work and employment is a key aspect of this human right,
which the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) seeks to
achieve. Convention No. 111 is one of the eight fundamental ILO Conventions and has
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been ratified by 165 countries. 2 The Convention is accompanied by the Discrimination
(Employment and Occupation) Recommendation, 1958 (No. 111).
Indigenous and tribal peoples are the holders of unique cultures, knowledge systems
and livelihood strategies. However, many have lost control over their own development
path through historical processes. As a result, they are often excluded from political
1
See, for instance, article 6 (right to work) of the International Covenant on Economic, Social and
Cultural Rights, ratified by 156 states (as of 20 July 2007).
2
As of 3 September 2007.
A Guide to ILO Convention No. 111
participation and their economies are undermined due to their lack of control over
land and resources. Whether these peoples are pastoralists, hunter-gatherers, forest
dwellers, peasants, workers in the informal economy or formally employed, most face
high levels of discrimination and poverty – together with the lack of proper voice and
representation in decision-making. Indigenous women face additional gender-based
marginalisation and discrimination.
Convention No. 111 is applicable to – and very relevant for – indigenous workers, but
it is hardly known among organisations of indigenous and tribal peoples. Furthermore,
the links between the discrimination against indigenous workers and the application of
Convention No. 111 have rarely been explored.
Therefore, the objectives of the guide are:
•
To demonstrate the relevance of Convention No. 111 to the situation of indigenous
and tribal workers;
•
To provide practical information on Convention No. 111 to facilitate its use as
an instrument to combat discrimination against these workers and promote their
access to decent work opportunities; and
•
To provide an overview on how the ILO supervises the application of Convention
No. 111.
In addition, the Convention on Indigenous and Tribal Peoples, 1989 (No. 169), which
was adopted by the ILO in 1989, provides a series of very important elements for
overcoming discrimination against these peoples and ensuring equality of opportunity
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and treatment for them. The guide will therefore also show how elements of Convention
No. 169 can guide and contribute to an effective application of Convention No. 111
to help ensure that indigenous and tribal peoples fully enjoy their right to equality of
opportunity and treatment in employment and occupation.
The guide is structured in three main parts:
1.
2.
The ILO Convention No. 111 and its applicability to the situation of indigenous
and tribal peoples
3.
Main issues concerning discrimination against indigenous and tribal peoples in
employment and occupation
A n introduction to the ILO’s supervisory system
Discrimination against
indigenous and tribal peoples
in employment and occupation
1
Who are indigenous and tribal peoples?
I
ndigenous and tribal peoples 3 number over 370 million individuals and represent
approximately 5,000 distinct peoples in more than 70 different countries.
The term “indigenous and tribal peoples” is a general denominator for distinct
peoples who have been pursuing their own concept and way of human development
in a given geographical, socio-economic, political and historical context. Throughout
history, these peoples have struggled to maintain their group identity, languages,
traditional beliefs, worldviews and ways of life, and the control of their lands, territories
and natural resources.
ILO Convention No. 169 underlines that these peoples include
those who:
•
Are descended from populations which inhabited the country or region at
the time of conquest, colonisation or establishment of state boundaries
•
Retain some or all of their own social, economic, cultural and political
institutions
In addition, most indigenous peoples:
•
•
•
Have strong links to their lands and territories
Have distinct languages, knowledge systems and beliefs
Form non-dominant sectors of society
Furthermore, self-identification is a fundamental criterion in determining
who is covered by the Convention.
3
The ILO Convention No. 169 uses the terminology of “indigenous and tribal peoples”. For
practical reasons, this is hereafter used interchangeably with “indigenous peoples”.
A Guide to ILO Convention No. 111
Indigenous peoples’ cultures, governance institutions and knowledge systems are
often closely related to their traditional occupations. These include handicrafts, rural and
community based industries and traditional activities such as hunting, fishing, trapping,
shifting cultivation or gathering. In some cases, indigenous peoples are simply identified
by their traditional occupations, as, for example, pastoralists, shifting cultivators and
hunter-gatherers.
Indigenous peoples often have much in common with other marginalized segments
of society. For example they may have weak political representation and participation,
limited access to social services, and face discrimination and exploitation in the labour
market. However, as distinct peoples, they collectively pursue livelihood strategies,
values and aspirations that may be fundamentally different from other sections of society.
Diversity of situations
Most indigenous peoples have developed highly specialized livelihood strategies, which
are adapted to the specific conditions of their traditional territories and are highly
dependent on access to lands, territories and resources. The era of economic globalisation
has increased the pressure on indigenous peoples’ lands and resources, implying that in
many cases such traditional livelihood strategies, pastoralism or shifting cultivation, for
example, may no longer be viable.
Although most indigenous peoples maintain strong links to their traditional lands
and territories and maintain some elements of their traditional occupations, many seek
alternative income. Today, the overwhelming majority of indigenous groups have some
or even most of their members living outside their traditional territories where they
have to compete for jobs and economic opportunities.
In short, the situation is far from static: historical processes have had a profound
impact on indigenous peoples’ occupations and employment situation, and have
forced them to develop dynamic and diversified responses in order to adapt to
shifting circumstances beyond their control. This diversity of situations will need
to be considered when exploring how Convention No. 111 addresses the situation of
these peoples.
Restrictions on engaging in traditional
occupations (access to lands and resources)
The main problem faced by indigenous peoples regarding their traditional occupations
is the lack of recognition of their rights to lands, territories and resources. Many
communities have been marginalized and alienated due to land grabbing, large-scale
development projects, population transfer, establishment of protected areas, etc.
Discrimination against indigenous and tribal peoples
Decision-makers are often unaware of the importance of indigenous peoples’
traditional occupations in the pursuit of poverty reduction, food security and sustainable
development as well as for the national economy in general. Traditional occupations are
often unjustly disregarded as being outdated or unproductive and are even, in some cases,
prohibited by law. 4 This is further aggravated by the deterioration of environmental
conditions, lack of investments, infrastructure and social services in indigenous areas,
as well as poor access to markets and credit. The result is widespread malnutrition, poor
educational results, health problems, increasing poverty, un- and under- employment,
widespread out migration from indigenous lands and the destructions of social fabric
and cultural institutions.
Discrimination in employment
Many indigenous peoples have had negative experiences with national and international
labour markets where they have often been exploited or included in the most
disadvantaged way, for example as bonded labourers in colonial regimes. 5
Most indigenous and tribal societies have therefore developed diversified economies,
comprising both subsistence and market-oriented production in combination with other
types of employment. Job opportunities within indigenous territories are often few and
many have to migrate – either temporarily or permanently – in search of work and
economic opportunities. However, only few indigenous workers obtain well-paid jobs in
the formal economy while many take unskilled jobs in the informal economy, with low
wages and no social protection mechanisms. In developing countries, indigenous people
are often found as domestic, agricultural or construction workers or as small-scale street
vendors. Discrimination against indigenous workers is also a well-known phenomenon in
richer societies where many indigenous people are un- or under- employed, or dependent
on social welfare.
Lack of respect for indigenous peoples’ rights and cultures may lead to discrimination
against their traditional livelihood strategies and occupations and may also be the cause
of discrimination against indigenous individuals seeking employment and economic
opportunities outside their traditional lands.
There is a general lack of reliable data and statistics about indigenous peoples and
there is even less knowledge about their particular situation with respect to occupation and
employment. However, where evidence is available, it indicates that indigenous peoples
are being discriminated against and thus belong to the poorest sections of society, with
limited opportunities to pursue the occupation of their choice or to find employment.
4
This is, for example, the case with shifting cultivation in certain countries in South Asia.
5
The situation of forced labour of indigenous peoples was a major consideration leading to the
adoption of ILO Convention No. 29 on Forced Labour in 1930.
A Guide to ILO Convention No. 111
The World Bank estimates that indigenous peoples constitute approximately 5 per cent
of the world’s population but 15 % of the poor. 6 They often have limited access to basic
social services (including education and vocational training) and are disproportionately
represented among the victims of child labour and forced labour.
As indigenous people seek employment or occupations in the national and
international labour market, they are often faced with a number of barriers and
disadvantages:
•
•
•
Many indigenous workers are not able to compete on an equal footing, as their
k nowledge and skills are not appropriately valued and they have limited access to
formal education and vocational training.
Indigenous workers are often included in the labour market in a precarious way
that denies their fundamental labour rights.
Indigenous workers generally earn less and the income they receive compared to
the years of schooling completed is less than their non-indigenous peers. This gap
increases with higher levels of education.
Discrimination against indigenous women
Discrimination in employment and occupation affects indigenous men and women
differently and gender may be an additional cause of discrimination against indigenous
women. In the labour market, indigenous women are more discriminated against than
both indigenous men and non-indigenous women. In addition, indigenous women may
also be discriminated against within indigenous communities themselves.
Many indigenous women:
•
•
•
•
•
•
•
6
Have less access to education and training at all levels;
Are more affected by un- and under- employment;
Are more often involved in non-remunerated work;
Receive less pay for equal work;
Have less access to material goods and formal recognition needed to develop their
occupation or to obtain access to employment;
Have less access to administrative and leadership positions;
Experience worse conditions of work, for example related to working hours and
occupational safety and health;
World Bank: Implementation of Operational Directive 4.20 on Indigenous peoples: An independent
desk review, Report No. 25332, 10 January 2003, Operations Evaluation Department, Country
Evaluation and Regional relations (OEDCR), World Bank (Washington, DC).
Discrimination against indigenous and tribal peoples
•
•
Are particularly vulnerable to sexual abuse and harassment and trafficking, as they
often have to seek employment far away from their communities; and
Are limited by discriminatory cultural practices which, for example inhibit the
education of the girl-child or prevent women from inheriting land or participating
in decision-making processes.
While often being subjected to discrimination, indigenous women have also been
playing a leading role in the promotion of gender equality within their communities and
also through mainstreaming a gender perspective into advocacy for indigenous people’s
human rights.
Internal discrimination
A phenomenon that is still largely unexplored is discrimination against certain sections
within some indigenous societies, based on internal systems of social stratification. One
such example is the discrimination against the “blacksmiths” within the Maasai society
but more cases may be known as indigenous organisations increase their awareness of
the reasons for and implications of discrimination.
Conclusions
Although there is often a lack of specific statistical information on the situation of
indigenous and tribal peoples, available data do indicate that the discrimination against
them is generalised in most countries where they live, most commonly in the following
ways:
•
•
•
•
•
•
•
Their livelihood strategies are not recognized or supported;
Their languages, cultural values and skills are not recognized;
Their rights to lands and resources are not recognized, which undermines their
rights to engage in traditional occupations;
They have limited access to education and vocational training – or such services
are not adequately addressing their needs;
They experience higher levels of un- and underemployment, have less access to jobs
in the formal economy and are generally paid less that their non-indigenous peers;
They are more affected by severe poverty and thus more vulnerable to becoming
victims of child labour, forced labour, trafficking and other human rights violations;
and
Indigenous women face additional gender-based discrimination in the labour
market and within their communities.
2
The Discrimination (Employment and
Occupation) Convention, 1958 (No. 111)
W
hen using Convention No. 111 as an instrument to promote the right of indigenous
and tribal peoples to equality of opportunity and treatment in employment and
occupation, it is important as a first step to examine the basic features and concepts
contained in this instrument.
This section looks into the following issues:
•
•
•
•
The persons and groups covered by the Convention;
The definition of “discrimination”;
The meaning of “employment and occupation”; and
The obligations of ratifying States.
Considering these features and concepts will assist in identifying the types of
discrimination covered by the Convention.
The conclusions outline practical recommendations on how to use Convention
No. 111 to promote end ensure equal treatment and equal opportunities for indigenous
and tribal peoples.
Who is covered by the Convention?
The purpose of Convention No. 111 is to protect all persons, including indigenous
peoples, against discrimination in employment and occupation. The Convention
protects not only those who have already found employment or exercise an occupation,
but also those who are preparing to work or seeking work.
The Convention applies to all sectors of activity and covers all occupations and
employment in both public and private sectors, as well as in the informal economy. The
Convention deals not only with wage-earning employment, but with independent and
own-account work as well. Both nationals and non-nationals should be protected from
discrimination on the grounds covered by the Convention.
A Guide to ILO Convention No. 111
What is discrimination?
Generally, the term discrimination is used to describe situations where certain individuals
are treated differently and less favourably because of certain characteristics such as, for
instance, their race, sex, religion or political opinion.
Convention No. 111 places the general principle of non-discrimination in the
context of work and employment by providing a very specific legal definition of what
constitutes discrimination (Article 1 of the Convention).
Box 1: Definition of discrimination
According to Convention No. 111, discrimination occurs when a
distinction, exclusion or preference is made (“differential treatment”) on
the basis of certain grounds such as race, colour, sex, religion, political
opinion, national extraction or social origin (“prohibited grounds”), and such
differential treatment has a negative effect on the enjoyment of equality
of opportunity and treatment in employment and occupation.
The sections below further elaborate on the meaning and implications of the
elements contained in the definition of discrimination as set out in Box 1. If a situation
or practice involves all three elements, discrimination in the sense of the Convention
may have occurred. 7
Distinction, exclusion or preference
•
•
These terms refer to the same phenomenon: a person, persons or group is/are
being treated differently than others.
Such differential treatment can exist in or result from a variety of sources including
laws, administrative regulations, policies, practices, the functioning of institutions
or social patterns.
Grounds of discrimination
•
•
7
0
The Convention refers explicitly to seven grounds: race, colour, sex, religion,
political opinion, national extraction and social origin.
While it does not explicitly refer to discrimination against indigenous or tribal
peoples, the prohibited grounds of race, colour and national extraction cover
However, the Convention allows certain distinctions, exclusions or preferences in respect of a
particular job if they are based on the inherent requirements of that particular job. See Article 1(2)
of the Convention.
Convention No. 111
•
discrimination on the ground of a person’s ethnicity, language, and indigenous
origin or identity.
Indigenous people may be subject to discrimination based on one or more prohibited
grounds. For instance, indigenous peoples may be discriminated against on the
grounds of their religion or social origin. Indigenous or tribal women are often
discriminated against because they are indigenous and because they are women.
Negative effect on equality of opportunity and treatment
•
•
•
•
Differential treatment is discriminatory if it produces negative effects on the
enjoyment of equality of opportunity and treatment of person(s) or groups
concerned.
“Equality of opportunity and treatment” includes two aspects: (1) the notion of
equal treatment which requires that all persons should be treated on an equal
footing; and (2) the notion of equal opportunity which requires that everyone
must be offered comparable means and opportunities. The notion of equal
opportunity suggests that everybody should be brought to an equal level in order
to access work opportunities.
With the focus on “effect”, it is irrelevant whether the discrimination was intentional
or not.
By emphasising the effect on equality of opportunity and treatment, the Convention
aims at the elimination of both direct and indirect discrimination (see below).
Direct and indirect discrimination
Direct discrimination refers to rules, policies or practices that exclude or
disadvantage certain individuals because they belong to a particular group or because
they have certain characteristics (example: indigenous origin, sex, religion, etc.).
This
form is generally easier to identify.
Example
An enterprise hires indigenous and non-indigenous workers to perform plantation work as
casual workers. However, indigenous workers are not hired under regular labour contracts,
under which better wages are paid and benefits and allowances are available.
Indirect discrimination is often hidden, more subtle and therefore more difficult
to identify. It occurs when apparently neutral measures (rules, polices or practices) have a
disproportionately adverse impact on one particular group. Even well-intended measures
may be discriminatory.
Examples
A national vocational training scheme that applies to all parts of the population, including
indigenous peoples, does not take into account the cultural differences between indigenous
A Guide to ILO Convention No. 111
and non-indigenous groups( e. g. different languages, different ways to relate to the land,
different cultural traditions, etc).
This leads to low participation of indigenous peoples and
as a result to fewer opportunities for indigenous peoples to access employment or to exercise the
occupations of their choice, including traditional occupations.
The laws, regulations and policies on rural development do not acknowledge, or may even
discourage, traditional livelihood activities that indigenous groups wish to pursue. As a result,
the programmes and facilities to promote rural development may undermine the possibility of
indigenous peoples pursuing their traditional occupations and livelihood strategies.
Not all measures taken that have a negative effect on indigenous peoples are per se
discriminatory. Such measures may be permitted if they are necessary and proportionate
to achieve a legitimate objective. Whether a specific measure stands this test has to be
decided on a case-by-case basis, depending on the specific circumstances. However,
when applying the Convention to situations or practices affecting indigenous and tribal
peoples, it would not be appropriate to accept justifications that are based on stereotypes
concerning the capabilities, interests and aspirations of indigenous and tribal peoples,
or other disregard for their rights and dignity. Rather, in order for a specific measure
not to qualify as indirect discrimination, it would have to be shown that the measure’s
objective takes account of the rights and dignity of indigenous peoples, including the
right to be consulted on matters that concern them.
The need to avoid and eliminate indirect discrimination requires decision-makers
to take into account the differences between persons and groups when designing and
implementing laws, polices and other measures, in order to avoid discriminatory
outcomes. A situation should be created in which indigenous peoples enjoy equal
opportunities in accessing the training, public services, and the resources that are
necessary for them to obtain decent work, in conditions respectful of their cultures,
ways of life and aspirations. The potential impact and effects of planned measures on
indigenous and tribal peoples and communities should be assessed in consultation with
the communities concerned.
The concept of indirect discrimination can thus serve as a tool to challenge views,
perceptions and approaches concerning social and economic development held by
dominant segments of society that so far have failed to recognize the rights and cultures
of indigenous peoples.
What is meant by “employment and occupation”?
Convention No. 111 aims at the elimination of discrimination with respect to all aspects
of “employment and occupation”. Article 1 (3) provides that the terms “employment”
and “occupation” include access to vocational training, access to employment and to
particular occupations, and terms and conditions of employment.
Convention No. 111
“Employment” refers to work performed under an employment relationship with
an employer. “Occupation” means the trade, profession or type of work performed by an
individual, irrespective of the branch of economic activity or the professional status of
the worker. Traditional occupations pursued by indigenous peoples, such as subsistence
farming, handicraft production or hunting, are occupations covered by the Convention.
The notes below provide further details as to the situations that are covered by the
Convention:
Education, vocational guidance and training
Without equal access to training, any real possibility of entering an employment or
occupation would be illusory, inasmuch as training is one of the keys to the promotion
of equality of opportunities. The Convention does not cover only vocational training
in a narrow sense but any education or training that is necessary to obtain access to
any given employment or to exercise a particular occupation. This includes skills
development schemes or facilities for workers in the informal economy.
Indigenous and tribal peoples should have access to training that is based on their
economic environment, social and cultural conditions and practical needs, as such
training is more likely to promote their equal opportunities. When developing such
training it is important to consult with the peoples concerned.
Example
An indigenous educational institution in a Latin America has been providing Bilingual
Intercultural Education (BIE) over a number of years, taking into account the linguistic
and cultural differences of indigenous peoples. However, new rules for selection of candidates
for teacher training were introduced. These rules established admission requirements that
were almost impossible to fulfil for the overwhelming majority of indigenous students. As a
result, indigenous students were de facto excluded from training to become bilingual teachers.
The new rules had been introduced without appropriate consultation and participation of
indigenous peoples.
Access to employment and particular occupations
Equality in respect of access to employment includes equal access to and equal treatment
by placement services and other measures promoting employment in public work
programmes, or other active labour market measures; and non-discrimination and
equal opportunities in the context of recruitment and hiring.
Example
An enterprise indicates to an employment agency that it does not accept job seekers with an
indigenous background.
A Guide to ILO Convention No. 111
Equality in respect of access to particular occupations implies that nobody should
be excluded from exercising the occupation of their choice on discriminatory grounds.
Where indigenous peoples pursue their traditional occupations, they should enjoy
access to credit, market facilities, agricultural extension and skills training facilities on
an equal footing with other parts of the population. In all these cases, state policies will
need to focus on equal opportunity in providing the skills, assets and resources on an
equal basis.
Examples
Pastoralists who have migrated to a city wish to commercialize traditional herbs. In order
to establish themselves economically they seek to obtain micro-loans. However, the finical
institutions reject their loan applications based on the assumption that, because of the nomadic
way of life of pastoralist communities, these people could disappear from the city and it will be
very difficult to trace them. In this case, the justification for not giving access to loans could
be based on a stereotype.
A recent ILO study in South East Asia reported discriminatory practices against indigenous
women bringing their agricultural products to the markets. Non-indigenous shopkeepers used
ancient stones for weighing rather than kilogram measurement, which they are supposed to
use as per the rule of the market. As result, indigenous women received a lower price for
their products, and were thus deprived of the equal opportunity to develop themselves as
entrepreneurs. 8
Access to land and natural resources is generally the basis for indigenous peoples
to engage in their traditional occupations. Recognition of the ownership and possession
of the lands which they traditionally occupy, access to land which they have used for
traditional activities, and measures to protect the environment of the territories they
inhabit are therefore crucial with a view to enabling indigenous peoples to pursue their
traditional occupations. Where indigenous peoples’ rights to ownership, possession or
use of land are recognised under the law, these rights should be protected effectively.
Example
Land policies and laws may have the effect of depriving indigenous and tribal peoples from the
land necessary to exercise shifting cultivation. 9
8
9
Sadeka Halim, Case study on Gender Related Challenges Among the Indigenous Peoples in Bangladesh,
I LO/PRO-169 (forthcoming).
Kamal Aryal and Elisabeth Kerkhoff, The right to practice shifting cultivation as a traditional occupation
in Nepal: A case study to apply ILO Conventions Nos. 111 and 169, ILO/PRO169 (forthcoming).
Convention No. 111
Terms and conditions of employment
The concept of “terms and conditions of employment” referred to in the Convention
provides that all persons, without discrimination, should enjoy equality of opportunity
and treatment in the following areas:
•
•
•
•
Career advancement;
Job tenure;
Remuneration for work of equal value; and
Conditions of work including hours of work, rest periods, annual holidays with
pay, occupational safety and health measures, as well as social security measures,
welfare facilities and benefits provided in connection with employment.
Examples
Indigenous agricultural workers are paid less for the same work than their non-indigenous
peers.
While indigenous workers are not provided with appropriate health protection equipment (e.g.
to handle hazardous chemicals), such equipment is provided to non-indigenous supervisors.
What are special measures?
Under the Convention, special measures can be taken to protect certain specific
groups in order to meet their particular needs. Such measures, taken to respond to the
protective needs of the groups concerned, are not deemed to be discriminatory.
Convention No. 111 specifically refers to special measures provided for in ILO
Conventions and Recommendations, such as Conventions Nos. 107 and 169 that
specifically address the situation of indigenous and tribal peoples. On this basis,
Convention No. 111 allows ratifying States to take special measures to protect the
rights, cultures and lifestyles of indigenous peoples.
Examples
Special measures to ensure effective protection with regard to recruitment and employment
conditions of indigenous and tribal workers, as far as they are not protected by the laws
applicable to workers in general (Convention No. 169, Art. 20(1)).
Special measures to prevent encroachment or illegal taking-over of indigenous peoples’ lands
by non-indigenous outsiders (Convention No. 169, Articles 14 (2) and 14 (3)).
The Convention also allows countries to take positive or affirmative action,
sometimes referred to as special temporary measures. These are measures that aim at
A Guide to ILO Convention No. 111
compensating for past discrimination or at overcoming existing discrimination with
a view to achieving equality. These measures are of a temporary nature, and thus
maintained as long as necessary to achieve their objective, i.e. equality of the groups
in favour of which they are taken. Accordingly, the implementation should be assessed
on a regular basis.
Examples
Special educational grants for indigenous youth or reserved jobs in public sector employment.
Any special measure taken should be determined in consultation with the groups
concerned in advance.
What are the State’s obligations
under the Convention?
Article 2 of Convention No. 111 provides that the States must adopt and implement
a national policy to promote equality of opportunity and treatment in employment
and occupation, with a view to eliminating discrimination. Such a policy should not
only include legal provisions prohibiting discrimination, but also proactive measures to
achieve equality in practice. Where groups such as indigenous and tribal peoples, who
are protected by the Convention, face inequalities in employment and occupation, the
situation should be corrected.
While the Convention provides for a great deal of flexibility in designing such
a national policy, the policy should make a practical and effective contribution to
the elimination of discrimination. The Convention itself lists certain elements that a
national policy should contain. These include the following:
•
•
Enacting and enforcing appropriate legislation;
Repealing discriminatory statutory provisions and administrative practices or
instructions;
•
Ensuring non-discrimination in public employment, and vocational guidance and
training, as well as employment services under the government’s authority;
•
Promoting educational programmes (e.g. to promote awareness and respect for
indigenous and cultures and lifestyles); and
•
Cooperation with workers’ and employers organisations, as well as other
appropriate bodies (e.g. national equality or human rights commissions).
Recommendation No. 111 contains further guidance on what a national policy to
promote equality in employment and occupation could entail.
Convention No. 111
National equality policies in the context of Convention No. 111 that have no impact
on existing inequalities between indigenous peoples and other parts of the population
in the area of employment and occupation should be reviewed and strengthened. In this
regard, consultation with and participation of the indigenous and tribal peoples and
communities concerned ensures that any measure taken to promote their equality in
employment and occupation is in line with their needs and interests.
While the responsibility to adopt and implement an appropriate national policy
under Convention No. 111 lies with the Government, this issue is also subject to
international supervision by the ILO (see Part 3).
In fact, the Convention specifically
requires Governments to report to the ILO on the action taken in pursuance of the
national equality policy and the results achieved by such action (Article 3(f)).
Conclusions
Convention No. 111 promotes equal access to decent work of indigenous and tribal
peoples. It defines the principle of equality of opportunity and treatment in the context
of work and provides for certain steps and measures that ratifying States must take in
order to respect, promote and realize this principle.
In order to identify situations that may involve discrimination as defined by
Convention No. 111, it is necessary to examine carefully the facts that are thought to
constitute discrimination. After the facts have been identified, they need to be linked
to the elements making up the definition of discrimination (see box 1).
If all elements
can be identified, discrimination in employment and occupation may have occurred.
The final step in such an examination is to assess whether the distinction, exclusion or
preference that negatively affects indigenous peoples, is justified by an objective and
legitimate reason.
Checklist 1 below provides guidance for examination of concrete situations with a
view to identifying discrimination that is contrary to the Convention.
Checklist 2 has been included to assist indigenous and tribal peoples and relevant
decision-makers in examining the national policy to promote equality of opportunity
and treatment in employment and occupation, which is either in place or under
consideration in their countries.
A Guide to ILO Convention No. 111
Checklist 1: Identifying discriminatory laws, policies
and practices
1.
Determine what constitutes the “distinction, exclusion or
preference”?
Identify the person(s) or groups that face differential treatment.
Identify the act, omission or process that treats the persons or groups
concerned differently or leads to exclusions (a law, administrative
regulation, policy or practice etc).
Identify the author, if any, of the act or omission (e.g. an administrative
body or authority or private actors (such as an enterprise)).
2.
3.
Establish that the differential treatment is based on a
prohibited ground
Do the person(s) or groups that face differential treatment or exclusion
have personal characteristics that relate to one or more of the prohibited
grounds of discrimination (race, colour, sex, religion, political opinion,
national extraction or social origin)?
Is the treatment due to the person’s indigenous or tribal origin?
In a case of suspected indirect discrimination, do the apparently neutral
measures disproportionately affect indigenous peoples, as compared to
non-indigenous parts of the population?
What is the negative effect on equality in employment and
occupation?
In which ways does the distinction, exclusion or preference have a
negative effect?
Identify the aspect of employment and occupation that is affected
(training, access to particular occupations, access to necessary resources,
recruitment, terms and conditions of work, dismissal, etc).
Examine how indigenous men and women are affected.
Convention No. 111
4.
Is there a valid and legitimate justification?
Is the differential treatment justified because it is based on an inherent
requirement of a particular job (e.g. a non-indigenous job applicant
has been preferred over an indigenous applicant due to a difference in
qualifications that are actually needed for the job)?
In case of suspected indirect discrimination, the following questions
should be examined to determine whether the measure concerned
could be justified because it is necessary and proportionate to achieve
an legitimate objective:
• Is the objective of the measures concerned based on respect for
indigenous peoples’ rights and dignity?
• Has the distinct situation of the indigenous and tribal peoples
concerned (practical needs, economic situation, language, etc)
been taken into account when designing and putting in place the
measures concerned?
• Have the communities concerned been consulted?
• Have any alternative measures been explored that are more
respectful of the indigenous and tribal people’s right to exist and
maintain their culture and institutions?
A Guide to ILO Convention No. 111
Checklist 2: Strengthening the national policy to eliminate
discrimination against indigenous and tribal
peoples
In order to effectively eliminate discrimination against indigenous and tribal
peoples, the following elements should be considered in the national policy:
Legislation prohibiting and preventing discrimination in employment and
occupation against indigenous peoples, as well as effective enforcement
of such legislation. Ensuring access of indigenous and tribal peoples to
judicial and administrative procedures.
Measures to protect indigenous and tribal peoples in the informal
economy from work-related discrimination, forced labour and other
exploitative labour practices.
Provisions to ensure that indigenous and tribal peoples can carry out
their traditional occupations without undue restrictions and to this end
recognizing their right to exist and to maintain their cultures, traditions
and institutions in national law and policies.
Social dialogue on indigenous and tribal peoples’ and persons equal
opportunities to access decent work.
Promotion of awareness and respect for indigenous cultures and
traditions among non-indigenous segments of society.
Providing educational and training opportunities on at least an equal
footing with the rest of the national community. Ensure that the training
programmes offered are based on the practical needs, social and cultural
conditions and economic environment relevant to the peoples concerned.
Consider the provision of bilingual and intercultural education.
Consultation with and participation of indigenous and tribal peoples
in the development and implementation of measures designed to
promote their equality of opportunity and treatment in employment
and occupation, including any special measures.
0
Convention No. 111
Mainstreaming the promotion of equal opportunities in employment and
occupation in relevant national policies, such as land policies, poverty
reduction strategies, rural or local development programmes, training
policies, employment policies (including inter alia, active labour market
measures, environmental policies, and gender policies).
Enhanced cooperation between governmental units responsible for
labour and employment matters, human rights, or indigenous and tribal
affairs.
Integration of a gender perspective in all measures undertaken to
promote equality of opportunity and treatment of indigenous and tribal
peoples.
Monitoring of the situation of indigenous peoples in employment and
occupation on the basis of appropriate data (disaggregated by sex).
3
The ILO’s supervisory system
S
tates are required to report regularly to the ILO on the implementation of ratified
Conventions, indicating not only whether national laws are in conformity with the
Convention in question, but also informing the ILO about what has been done to make
sure the Convention has had an impact on a practical level.
It is important to remember that, unlike the rest of the UN system, the ILO is a
tripartite organisation. This means that its constituents, and therefore also decisionmakers, are not only governments, but also workers and employers, (ILO constituents).
These all have an active role to play in the supervision of ratified conventions.
More detailed information concerning the supervisory procedures of the ILO can be found in
Rules of the Game: a brief introduction to International Labour Standards and
in the Handbook on procedures relating to international labour Conventions and
Recommendations 10
The regular monitoring of ILO Conventions
Reporting on ILO Conventions is regulated by article 22 of the ILO Constitution.
States are required to report on ratified ILO Conventions at intervals of one to five
years, depending on which Convention is concerned, and on any problems encountered
in the implementation of the Convention. Reports on Convention No. 111 are required
at least every two years.
Workers’ and employers’ organisations can submit observations concerning the
application of ratified Conventions in their own right (article 23 of the ILO Constitution),
either to their governments or directly to the International Labour Office. They may,
for instance, draw attention to a discrepancy in law or practice regarding a Convention
that might otherwise have gone unnoticed.
The ILO body examining the application of ratified Conventions is the Committee
of Experts on the Application of Conventions and Recommendations
(CEACR).
This is a body of up to 20 independent experts that meets in Geneva once
10
http://www.ilo.org/public/english/standards/norm/information/publications.htm
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Guide
a year. The Committee examines States’ reports, observations from workers’ and
employers’ organisations and other information of relevance, such as information from
the United Nations System. The latter includes information from the UN committees
responsible for monitoring human rights treaties as well as official information emerging
from relevant UN bodies and mandates, including the Permanent Forum on Indigenous
Issues and the Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous peoples.
The CEACR engages in a process of ongoing dialogue with governments on the
application of ratified Conventions, and this regular supervision can be very effective
in identifying implementation and information gaps and suggesting measures and
mechanisms for improved implementation. The Committee’s comments on the fulfilment
by States of their standard-related obligations take the form of either “observations” or
“ direct requests”:
•
•
11
Observations. Observations are the CEACR’s public comments on the
application of ILO Conventions. They highlight areas of progress as well as areas of
concern and may also request further information on certain topics. Observations
are published every year in book format11 and on the ILOLEX online-database
).
Direct requests. These are sent directly to the government in question, and
generally ask for more information on specific subjects. They are also published on
the ILO web site (ILOLEX).
The Report of the Committee of Experts on the Application of Conventions and Recommendations,
Report III(1A).
The ILO’s supervisory system
Box 2: Comments by the Committee of Experts concerning
indigenous peoples under Convention No. 111:
Some examples from the Committee’s 80th Session (2006) 12
Belize was requested to provide detailed information on the measures
taken to promote equal opportunity and treatment of men and women
from indigenous communities in employment and occupation, as well as
information on any results achieved in promoting balanced representation
in vocational training and in the widest range of economic activities and
work.
Cameroon was invited to provide information on measures taken
to improve the living and working conditions of indigenous and tribal
peoples, in particular with regard to equality of opportunity and treatment
in employment and occupation. The Committee also requested statistical
information, disaggregated by sex, on the situation of the Baka, Bagyèli
and Mbororo in the labour market, including participation in education
and vocational training.
In its comments addressed to the Government of Kenya, the
Committee of Experts emphasized that legal protection alone may not be
sufficient to promote equal opportunities for all groups of the population
to appropriate training and education, as well as equal opportunities
to access employment and occupations, including traditional livelihood
activities. On that basis, the Committee asked the Government to provide
information on any measures taken or envisaged to promote and ensure
that minority groups enjoy work and employment opportunities on an
equal footing with other parts of the population.
Concerning New Zealand, the Committee noted that labour market
inequalities between Maoris and Pacific people continued to exist. It
considered that where marked labour market inequalities along ethnic lines
exist, a national policy to promote equality of opportunity and treatment,
as envisaged in Articles 2 and 3 of the Convention, should include measures
to promote equality of opportunity and treatment of members of all
ethnic groups in respect to access to vocational training and guidance,
placement services, employment and particular occupations, and terms
and conditions of employment. In order to achieve the objective of the
Convention it is necessary to address gaps in training and skills levels, as
well as to examine and eliminate other difficulties and barriers that Maoris,
Pacific people and members of other ethnic groups, face in accessing and
retaining employment in the various sectors and occupations.
12
The full texts of the respective observations and direct requests are available on ILOLEX.
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Guide
Special procedures
In addition to the regular procedures for supervising the implementation of ILO
Conventions, there are also procedures to deal with more serious situations, and alleged
violations of these Conventions. The most commonly used complaints procedure in the
ILO system is as follows:
•
Representations. These are governed by article 24 of the ILO Constitution.
A Representation alleging a Government’s failure to observe certain provisions
of ratified ILO Conventions can be submitted to the ILO by a workers’ or
employers’ organisation. These should be submitted in writing, and invoke
article 24 of the ILO Constitution, as well as outline which provisions of the
Convention in question are alleged to have been violated. Once the representation
has been received, the ILO’s Governing Body appoints a Tripartite Committee
(i.e. one government representative, one employer representative and one worker
representative) to examine it.
Can indigenous peoples participate
in the supervision of ILO Conventions?
Given the tripartite structure of the ILO, where do indigenous peoples fit in?
There are several ways in which indigenous peoples can ensure that their concerns are
taken into account in the regular supervision of ILO Conventions by the CEACR:
•
•
In order for other kinds of information to be officially taken into account by the
ILO, it must be sent by one of the ILO constituents. Usually, workers’ organisations
have a more direct interest in indigenous issues. Therefore, for the purposes of
ensuring indigenous peoples’ issues are raised, it is important that they strengthen
their alliances with workers’ organisations (trade unions).
•
Technical cooperation is another way that the ILO can assist governments
and indigenous peoples in making progress towards the implementation of ratified
Conventions. Sometimes technical cooperation is directly related to the supervision
of ILO Conventions, and can help to overcome problems in their implementation.
•
If a new policy, law, or court decision emerges, then this kind of information can
be sent directly to the ILO. The texts of laws and court decisions, for example,
may be considered as verifiable, objective information.
Through innovative approaches, for example, through establishment of formal
relations and procedures between indigenous peoples and governments. For
instance, Norway requested that the Saami Parliament submit its own independent
comments on the Government’s regular reports under the Convention, and that
these comments be considered by the ILO alongside the Government report.
The ILO’s supervisory system
Conclusions
As shown in Part I of this Guide, Convention No. 111 is highly relevant and fully applicable
to indigenous and tribal peoples. It is intended to protect them from discrimination at
work, irrespective whether it occurs with regard to the exercise of their traditional
occupations and livelihood activities, vocational training or education, or through the
operation of public or private employment agencies. The Convention is intended to
protect indigenous and tribal workers irrespective of whether they work in the informal
or formal economy, and irrespective of their employment status.
Identifying discrimination against indigenous and tribal peoples in employment
and occupation is a first step towards addressing and eliminating it. One remaining
challenge is to generate a better understanding and more specific data on the
discrimination against indigenous and tribal workers, including particular data on
situation of indigenous women.
At the national level, indigenous and tribal peoples may be able to take legal
action to challenge such discrimination on the basis of national legislation, but they may
sometimes also rely on international law, including Convention No. 111. Raising sound
discrimination concerns and arguments in the context of advocacy, negotiations and
dialogue with policy and decision makers is another important course of action that this
Guide is intended to stimulate. Such activities should aim at strengthening the national
polices that ratifying countries adopt and implement to promote equality in employment
and occupation. Elimination of discrimination in employment and occupation can be
achieved only if such national policies benefit all groups of the population on an equal
footing, including indigenous and tribal peoples.
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Guide
References
Equality at Work: tackling the challenges, Global Report under the ILO Declaration on Fundamental
Principles and Rights at Work, ILO, 2007.
General Survey on Equality of Opportunity and Treatment in Employment and Occupation,
Committee of Experts on the Application of Conventions and Recommendations,
ILO, 1988.
Handbook on Combating Child Labour among indigenous and tribal peoples, PRO169/IPEC,
ILO, 2006.
Handbook on procedures relating to international labour Conventions and recommendations, ILO,
Revised edition 2006.
ILO Convention on Indigenous and Tribal Peoples,1989 (No. 169): A Manual, Project to Promote
ILO Policy on Indigenous and Tribal Peoples, 2000.
Special Survey on Equality of Opportunity and treatment in Employment and Occupation,
Committee of Experts on the Application of Conventions and Recommendations,
ILO, 1996.
Time for Equality at Work: Global Report under the ILO Declaration on Fundamental Principles
and Rights at Work, ILO, 2003.
Tomei, M., Ação afirmativa para a iguladade racial: características, impactos e desafios,
Documento de Trabalho, ILO Brasilia, 2005.
Tomei, M., Affirmative Action for Racial Equality: Features, impact and challenges,
DECLARATION WP/44/2005, ILO, 2005.
Tomei, M., Indigenous and Tribal Peoples and Poverty Reduction Strategy Papers (PRSPs): an
ethnic audit of selected PRSPs, ILO, 2005.
Thomas, V.(ed.), Traditional Occupations of Indigenous Tribal Peoples: Emerging Trends, Project
to Promote ILO Policy on Indigenous and Trial Peoples, 2000.
Vera Rojas, Patricia, La Discrimination en los Procesos de Selección de Personal, ILO,
DECLARATION Working paper No. 46, November 2006.
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Guide
ILO websites
International Labour Standards Department:
www.ilo.org/normes
ILOLEX database:
Project to Promote ILO Policy on Indigenous and Tribal Peoples:
http://www.ilo.org/indigenous
Programme to Promote the Declaration:
www.ilo.org/declaration
0
Annex 1:
ILO Convention No. 111
Discrimination (Employment and Occupation)
Convention, 1958
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Forty-second Session on 4 June 1958, and
Having decided upon the adoption of certain proposals with regard to discrimination
in the field of employment and occupation, which is the fourth item on the agenda of
the session, and
Having determined that these proposals shall take the form of an international
Convention, and
Considering that the Declaration of Philadelphia affirms that all human beings,
irrespective of race, creed or sex, have the right to pursue both their material wellbeing and their spiritual development in conditions of freedom and dignity, of economic
security and equal opportunity, and
Considering further that discrimination constitutes a violation of rights enunciated
by the Universal Declaration of Human Rights,
adopts this twenty-fifth day of June of the year one thousand nine hundred
and fifty-eight the following Convention, which may be cited as the Discrimination
( Employment and Occupation) Convention, 1958:
Article 1
1. For the purpose of this Convention the term discrimination includes –
a)
b)
any distinction, exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin, which has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation;
such other distinction, exclusion or preference which has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation
as may be determined by the Member concerned after consultation with
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representative employers’ and workers’ organisations, where such exist, and with
other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on
the inherent requirements thereof shall not be deemed to be discrimination.
3. For the purpose of this Convention the terms employment and occupation
include access to vocational training, access to employment and to particular occupations,
and terms and conditions of employment.
Article 2
Each Member for which this Convention is in force undertakes to declare and
pursue a national policy designed to promote, by methods appropriate to national
conditions and practice, equality of opportunity and treatment in respect of employment
and occupation, with a view to eliminating any discrimination in respect thereof.
Article 3
Each Member for which this Convention is in force undertakes, by methods
appropriate to national conditions and practice –
a)
b)
c)
d)
e)
f)
to seek the co-operation of employers’ and workers’ organisations and other
appropriate bodies in promoting the acceptance and observance of this policy;
to enact such legislation and to promote such educational programmes as may be
calculated to secure the acceptance and observance of the policy;
to repeal any statutory provisions and modify any administrative instructions or
practices which are inconsistent with the policy;
to pursue the policy in respect of employment under the direct control of a national
authority;
to ensure observance of the policy in the activities of vocational guidance, vocational
training and placement services under the direction of a national authority;
to indicate in its annual reports on the application of the Convention the action
taken in pursuance of the policy and the results secured by such action.
Article 4
A ny measures affecting an individual who is justifiably suspected of, or engaged in,
activities prejudicial to the security of the State shall not be deemed to be discrimination,
provided that the individual concerned shall have the right to appeal to a competent
body established in accordance with national practice.
Article 5
1. Special measures of protection or assistance provided for in other Conventions
or Recommendations adopted by the International Labour Conference shall not be
deemed to be discrimination.
Annex 1
2. Any Member may, after consultation with representative employers’ and
workers’ organisations, where such exist, determine that other special measures
designed to meet the particular requirements of persons who, for reasons such as sex, age,
disablement, family responsibilities or social or cultural status, are generally recognised
to require special protection or assistance, shall not be deemed to be discrimination.
Article 6
Each Member which ratifies this Convention undertakes to apply it to nonmetropolitan territories in accordance with the provisions of the Constitution of the
International Labour Organisation.
Article 7
The formal ratifications of this Convention shall be communicated to the DirectorGeneral of the International Labour Office for registration.
Article 8
1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date on which the ratifications
of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 9
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into force,
by an act communicated to the Director-General of the International Labour Office for
registration. Such denunciation shall not take effect until one year after the date on which
it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this Article, will be bound
for another period of ten years and, thereafter, may denounce this Convention at the
expiration of each period of ten years under the terms provided for in this Article.
Article 10
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all ratifications
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and denunciations communicated to him by the Members of the Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the attention
of the Members of the Organisation to the date upon which the Convention will come
into force.
Article 11
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance with Article
102 of the Charter of the United Nations full particulars of all ratifications and acts
of denunciation registered by him in accordance with the provisions of the preceding
Articles.
Article 12
At such times as it may consider necessary the Governing Body of the International
Labour Office shall present to the General Conference a report on the working of this
Convention and shall examine the desirability of placing on the agenda of the Conference
the question of its revision in whole or in part.
Article 13
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides:
a)
b)
the ratification by a Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions of Article
9 above, if and when the new revising Convention shall have come into force;
as from the date when the new revising Convention comes into force, this
Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and content
for those Members which have ratified it but have not ratified the revising Convention.
Article 14
The English and French versions of the text of this Convention are equally
authoritative.
Annex 2: ILO Recommendation No. 111
The Discrimination (Employment and Occupation)
Recommendation, 1958
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Forty-second Session on 4 June 1958, and
Having decided upon the adoption of certain proposals with regard to discrimination
in the field of employment and occupation, which is the fourth item on the agenda of
the session, and
Having determined that these proposals shall take the form of a Recommendation
supplementing the Discrimination (Employment and Occupation) Convention, 1958,
adopts this twenty-fifth day of June of the year one thousand nine hundred and
fi fty-eight, the following Recommendation, which may be cited as the Discrimination
( Employment and Occupation) Recommendation, 1958:
The Conference recommends that each Member should apply the following
provisions:
I. Definitions
1.
(1) For the purpose of this Recommendation the term discrimination includes –
a)
b)
any distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the effect
of nullifying or impairing equality of opportunity or treatment in employment or
occupation;
such other distinction, exclusion or preference which has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation
as may be determined by the Member concerned after consultation with
representative employers’ and workers’ organisations, where such exist, and with
other appropriate bodies.
A Guide to ILO Convention No. 111
Guide
(2) Any distinction, exclusion or preference in respect of a particular job based
on the inherent requirements thereof is not deemed to be discrimination.
(3) For the purpose of this Recommendation the terms employment and
occupation include access to vocational training, access to employment and to particular
occupations, and terms and conditions of employment.
II. Formulation and Application of Policy
2. Each Member should formulate a national policy for the prevention of
discrimination in employment and occupation. This policy should be applied by means
of legislative measures, collective agreements between representative employers’ and
workers’ organisations or in any other manner consistent with national conditions and
practice, and should have regard to the following principles:
a)
b)
c)
d)
e)
the promotion of equality of opportunity and treatment in employment and
occupation is a matter of public concern;
all persons should, without discrimination, enjoy equality of opportunity and
treatment in respect of –
iii) access to vocational guidance and placement services;
iii) access to training and employment of their own choice on the basis of
individual suitability for such training or employment;
iii) advancement in accordance with their individual character, experience,
ability and diligence;
iv) security of tenure of employment;
iv) remuneration for work of equal value;
vi) conditions of work including hours of work, rest periods, annual holidays
with pay, occupational safety and occupational health measures, as well
as social security measures and welfare facilities and benefits provided in
connection with employment;
government agencies should apply non-discriminatory employment policies in all
their activities;
employers should not practise or countenance discrimination in engaging or
training any person for employment, in advancing or retaining such person in
employment, or in fixing terms and conditions of employment; nor should any
person or organisation obstruct or interfere, either directly or indirectly, with
employers in pursuing this principle;
in collective negotiations and industrial relations the parties should respect the
principle of equality of opportunity and treatment in employment and occupation,
and should ensure that collective agreements contain no provisions of a discriminatory
character in respect of access to, training for, advancement in or retention of
employment or in respect of the terms and conditions of employment;
Annexe 2
f)
employers’ and workers’ organisations should not practise or countenance
discrimination in respect of admission, retention of membership or participation
in their affairs.
3. Each Member should –
a)
ensure application of the principles of non-discrimination –
ii)
ii)
b)
in respect of employment under the direct control of a national authority;
in the activities of vocational guidance, vocational training and placement
services under the direction of a national authority;
promote their observance, where practicable and necessary, in respect of other
employment and other vocational guidance, vocational training and placement
services by such methods as –
iii) encouraging state, provincial or local government departments or agencies
and industries and undertakings operated under public ownership or control
to ensure the application of the principles;
iii) making eligibility for contracts involving the expenditure of public funds
dependent on observance of the principles;
iii) making eligibility for grants to training establishments and for a licence to
operate a private employment agency or a private vocational guidance office
dependent on observance of the principles.
4. Appropriate agencies, to be assisted where practicable by advisory committees
composed of representatives of employers’ and workers’ organisations, where
such exist, and of other interested bodies, should be established for the purpose of
promoting application of the policy in all fields of public and private employment, and
in particular –
a)
to take all practicable measures to foster public understanding and acceptance of
the principles of non-discrimination;
b)
to receive, examine and investigate complaints that the policy is not being observed
and, if necessary by conciliation, to secure the correction of any practices regarded
as in conflict with the policy; and
c)
to consider further any complaints which cannot be effectively settled by
conciliation and to render opinions or issue decisions concerning the manner in
which discriminatory practices revealed should be corrected.
5. Each Member should repeal any statutory provisions and modify any
administrative instructions or practices which are inconsistent with the policy.
6. Application of the policy should not adversely affect special measures designed
to meet the particular requirements of persons who, for reasons such as sex, age,
disablement, family responsibilities or social or cultural status are generally recognised
to require special protection or assistance.
A Guide to ILO Convention No. 111
Guide
7. Any measures affecting an individual who is justifiably suspected of, or
engaged in, activities prejudicial to the security of the State should not be deemed to
be discrimination, provided that the individual concerned has the right to appeal to a
competent body established in accordance with national practice.
8. With respect to immigrant workers of foreign nationality and the members of
their families, regard should be had to the provisions of the Migration for Employment
Convention (Revised), 1949, relating to equality of treatment and the provisions of the
Migration for Employment Recommendation (Revised), 1949, relating to the lifting of
restrictions on access to employment.
9. There should be continuing co-operation between the competent authorities,
representatives of employers and workers and appropriate bodies to consider what
further positive measures may be necessary in the light of national conditions to put the
principles of non-discrimination into effect.
III. Co-ordination of Measures for the Prevention of Discrimination
in All Fields
10. The authorities responsible for action against discrimination in employment
and occupation should co-operate closely and continuously with the authorities
responsible for action against discrimination in other fields in order that measures taken
in all fields may be co-coordinated.
Contact information
Project to Promote ILO Policy
on Indigenous and Tribal Peoples
Tel.: +41 22 799 7556
Fax: +41 22 799 6344
E-mail: [email protected]
Equality, Migrant Workers,
and Indigenous and Tribal Peoples Team
Tel. +41 22 799 6251
Fax. +41 22 799 6344
E-mail: [email protected]
www.ilo.org/indigenous
International Labour Standards Department
International Labour Office
ISBN 978-92-2-120519-7
9 789221 205197
