Prohibition of Discrimination in Labour Relations

• Author: Merle Muda
• Position: Lecturer of Labour Law
• Pages: 189-199

Page 189

Merle Muda

Lecturer of Labour Law

Prohibition of Discrimination in Labour Relations

Introduction

Voluntariness is characteristic of labour relations and employment contracts. This means, on the one hand, the freedom to choose one's place of work and sphere of activity¹ and, on the other hand, the parties to a labour relation can conclude an employment contract in concordance with their free will. With labour relations, however, the parties' freedom of contract is restricted by several provisions of public law: labour laws are imperative and the parties may also conclude agreements on conditions more favourable than those prescribed in law².

With an employment contract relationship, however, it is also important that the internationally recognised principle of equal treatment be observed³. The principle of equality and prohibition of discrimination in labour relations are based on the both legal and moral standpoint that similar employees should be treated similarly⁴.

On the international level, a great number of acts have been enacted that prohibit discrimination in labour relations. Although the protection of workers' fundamental rights is provided for in several international agreements and the application of principles of human rights is guaranteed in all the developed countries with a number of legislative acts, this area is nevertheless not without problems as it is often difficult to guarantee the actual implementation of the principles stated in various documents. Therefore, it is understandable why, on the international level, so much attention has been paid to the protection of human rights and the avoidance of discrimination in labour relations⁵.

Of the international acts prohibiting discrimination, the following are currently binding on Estonia: the United Nations International Covenant on Economic, Social and Cultural Rights (1966), the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1979) and ILO Convention No. 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951). In the near future, the Estonian parliament will ratify the European Social Charter (1961).

The elimination of discrimination is topical in many spheres of life, this article, however, focuses only on the equal treatment of workers. Within the context of labour relations, both international and domestic law pay special attention to the protection of certain groups of workers, e.g. the disabled, workers who have family obligations, and female employees. This is reasonable because in practice these groups of workers are those most often discriminated. The article treats the application of the principle of equal treatment of male and female employees in Estonia: it analyses the equal treatment of male and female workers in respect of hiring, remuneration, other working conditions and exclusions from the principle of equal treatment. The study is based on international covenants and conventions which prohibit discrimination.

In addition to international provisions binding upon Estonia, the article also analyses European Union (EU) legislation prohibiting discrimination insofar as the Europe Agreement⁶ imposes on Estonia the obligation to approximate Estonia's legislation to that of the Community particularly in the areas of trade, economy and related areas, including the issues pertaining to the protection of workers (Articles 68-69). Thus, Estonian labour laws should comply with Community standards which is a condition precedent to accession. On the other hand, within the EU more and more attention is paid to the equal treatment of female and male employees: Article 141 of the Amsterdam Treaty (1997) considerably expands EU competence in this area⁷.Page 190

The White Paper on the Preparation of Associated Central and East European Countries for Integration with the Internal Market of the European Union defines the guaranteeing of equal treatment of men and women in labour relations as a priority, making mention of the following important legislative acts: Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, and Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) ⁸.

In Estonian legislation, the prohibition of discrimination has not been a major issue. No special acts to this effect have been adopted. The general principle of equal treatment is provided for in § 12 of the Constitution⁹ under which everyone is equal before the law. No one is to be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status or on other grounds. Discrimination is also prohibited in the Employment Contracts Act¹⁰ and the Wages Act¹¹.

Application of the Principle of Equal Treatment as Regards Hiring

The UN Convention on the Elimination of All Forms of Discrimination Against Women,¹² which is binding on Estonia, sets out that States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment (Article 11 paragraph 1(b)).

The following principle is provided for in Article 20 of the European Social Charter:¹³ with a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields:

(a) access to employment, protection against dismissal and occupational reintegration;

(b) vocational guidance, training, retraining and rehabilitation;

(c) terms of employment and working conditions, including remuneration;

(d) career development, including promotion. The prohibition of discrimination of female and male employees is also set out in Article 3(1) of Council Directive 76/207/EEC14 under which the application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.

Estonian legislation does not set out the concept of the principle of equal treatment. The principle of equal treatment can be derived from § 10(1) of the Employment Contracts Act which provides for the bases which can in no case justify the giving of preferences or the restriction of rights: it is illegal to allow or give preferences, or to restrict rights on the grounds of the sex, nationality, colour, race, native language, social origin, social status, previous activities, religion, political or other opinion, or attitude towards the duty to serve in the armed forces of employees or employers. It is also illegal to restrict the rights of employees or employers on the grounds of marital status, family obligations, membership in citizens' associations, or representation of the interests of employees or employers.

Insofar as the principle of equal treatment provided for in § 10(1) of the Employment Contracts Act is applicable only to a labour relationship which has already been conceived, the principle can be applied to a candidate for a post on the basis of analogy. The same opinion can be found in the commented edition of the Employment Contracts Act: disadvantages or restrictions are contrary to subsection 1 only after the conclusion of an employment contract. A recruitment notice referring to circumstances, on the basis of which subsection 1 prohibits different treatment of people, is also contrary to law¹⁵.

Section 30 of the Employment Contracts Act provides for documents requisite to enter into an employment contract:

(1) identification;

(2) an employment record book;

(3) certificate (diploma) regarding the necessary qualifications or education;

(4) certificate (health record) regarding health if the employment contract is entered into for work where prior and periodic medical examinations are prescribed, or upon hiring persons who are under twenty-one years of age for work prescribed in special rules;

(5) the written consent of one parent or guardian and the labour inspector upon hiring a minor between thirteen and fifteen years of age;

(6) the written consent of one parent or curator upon hiring a minor who has attained fifteen years of age;

(7) a work permit upon hiring an alien or stateless person in the cases prescribed by law;Page 191

(8) other documents in the cases prescribed by law or regulations of the Government of the Republic (subsection 1). Upon hiring, it is prohibited to require documents which are not prescribed by law or regulations of the Government of the Republic. On their own initiative, employees have the right to present employers with references...