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ANALYSIS OF THE DISCRIMINATORY PRACTICES IN THE AREA OF EMPLOYMENT AND LABOR RELATIONS

SKOPJE, DECEMBER 2013

Analysis of the discriminatory practices in the area of employment and labor relations

CONTENTS Summary ��9 Introduction ��11 I. Subject of analysis ��12 Publication: Analysis of the discriminatory practices in the area of employment and labor relations

III. Discrimination in the area of employment and labor relations ��20

Editor in chief: Zaneta Poposka, PhD

1. Ethnicity ��20

Authors: Zaneta Poposka, PhD; Bekim Kadriu, PhD; Lenche Kocevska; Elena Kochoska

1.1. International legal standards ��20 1.1.1. United Nations Convention on Elimination of all forms of Racial Discrimination ��20 1.1.2. ЕCHR and Protocol 12 to the Convention ��21 1.1.3. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ��22

Translation: Igor Stefanovski Design and editing: Ognjen Fidanoski Printing: Royal Art Circulation: 1000 copies CIP – catalogization in publication National and University Library “Sv.Kliment Ohridski“, Skopje 331.5:342.72/.73(497.7) ISBN 978-608-4608-13-4 COBISS.MK-ID 95458826

II. Law on Prevention and Protection against Discrimination ��16

1.2. National legal framework ��24 1.2.1. Constitutional provisions ��24 1.2.2. Law on Labor Relations ��24 1.2.3. Law on Prevention and Protection Against Discrimination ��25 1.3. National policies ��25 1.3.1. National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental and physical disability and sex for 2012-2015 ��26 1.3.2. National strategy on equitable representation ��26 1.4. Situation analysis ��26 1.4.1. Perception of ethnic discrimination ��26

Analysis of the discriminatory practices in the area of employment and labor relations

1.4.2. Reported cases of ethnic discrimination ��27 1.4.3. Principle of equitable representation ��28 2. Age ��30

3.2.1 Constitutional provisions ��43 3.2.2 Law on Labor Relations ��43 3.2.3 Law on Equal Opportunities for Women and Men ��44 3.2.4 Law on Prevention and Protection against Discrimination ��45

2.1. International legal standards ��30 2.1.1. International Covenant on Economic, Social and Cultural Rights ��30 2.1.2. ILO Conventions on Prohibition of Discrimination in Employment and Occupation ��31 2.1.3. ЕCHR, Protocol 12 to the ECHR and the European Social Charter ��32 2.1.4. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation ��33

3.3. National policies ��45 3.3.1 National strategy on gender equality for 2013-2020 ��45 3.3.2 National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental/physical disability and sex for 2012-2015 ��46 3.3.3 National strategy on reduction of poverty and social exclusion in the Republic of Macedonia for 2010-2020 ��46 3.3.4 National employment strategy 2015 ��47

2.2. National legal framework ��34 2.2.1. Constitutional provisions ��34 2.2.2. Law on Labor Relations ��34 2.2.3. Law on Prevention and Protection against Discrimination ��35

3.4. Situation analysis ��48 3.4.1. Perception of discrimination on the grounds of sex ��48 3.4.2. Reported cases of discrimination on the grounds of sex ��48

2.3. National policies ��35 2.3.1. National strategy on elderly people for 2010-2020 ��35 2.3.2. National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental and physical disability and sex for 2012-2015 ��36 2.3.3. National strategy on reducing poverty and social exclusion for 2010-2020 ��36 2.3.4. National employment strategy 2015 ��36 2.4. Situation analysis ��37 2.4.1. Forms of discriminatory practices on the grounds of age ��37 2.4.2. Perception of discrimination on the grounds of age ��39 2.4.3. Reported cases of discrimination on the grounds of age ��39 3. Sex ��40 3.1. International legal standards ��40 3.1.1 UN Convention on the Elimination of All Forms of Discrimination against Women ��40 3.1.2 Directive 2006/54/ec of the European Parliament and the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation ��41

4. Mental and physical disability ��50 4.1. International legal standards ��50 4.1.1 UN Convention on the Rights of Persons with Disabilities ��51 4.1.2 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation ��52 4.2. National legal framework ��53 4.2.1 Constitutional provisions ��53 4.2.2 Law on Labor Relations ��54 4.2.3 Law on Employment of Persons with Disability ��55 4.2.4 Law on Prevention and Protection against Discrimination ��57 4.3. National policies ��58 4.3.1 National strategy on equal rights of persons with disabilities for 2010-2018 ��58 4.3.2 National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental/physical disability and sex for 2012-2015 ��58 4.3.3 National strategy on reduction of poverty and social exclusion for 2010-2020 ��59 4.3.4 National employment strategy 2015 ��59

3.2. National legal framework ��43 6

Analysis of the discriminatory practices in the area of employment and labor relations

4.4. Situation analysis ��60 4.4.1. Perception of discrimination on the grounds of mental and physical disability ��60 4.4.2. Reported cases of discrimination on the grounds of mental and physical disability ��61 IV. Institutional framework ��64 1. Commission for Protection against Discrimination ��64 2. Ombudsman ��65 3. Legal representative conducting procedures to establish unequal treatment of women and men ��67 4. State Labor Inspectorate ��67 V. Conclusions and recommendations ��70 ANNEX 1 – METHODOLOGY ��72 REFERENCES ��76

SUMMARY

he drafting of the Analysis of the discriminatory practices in the area of employment and labor relations on the grounds of ethnicity, age, sex and mental and physical disability stems from the National Strategy on Equality and Non-Discrimination on the Grounds of Ethnic Origin, Age, Mental and Physical Disability and Sex for 2012-2015 as well as from the 2013 Operational Plan for implementation of the National Strategy on Equality and Non-Discrimination, strategic goal 1: Improvement of the legal framework for equal opportunities and non-discrimination. This publication scrutinizes, from a legal point of view, the situation with discriminatory practices in the area of employment and labor relations on the grounds of ethnic origin, age, sex and mental and physical disability. The analysis was completed in the period March-October 2013 by a group of four authors: Ms Zaneta Poposka, PhD; Mr. Bekim Kadriu, PhD; Ms Lenche Kocevska and Ms Elena Kochoska, at the initiative of the Ministry of Labor and Social Policy and supported by the OSCE Mission to Skopje and the project “From legislation to practice” implemented under the scope of the Progress Programme of the European Union. The challenge for this legal analysis was to depict the situation with discriminatory practices in the area of employment and labor relations regarding the abovementioned four discriminatory grounds, both from the aspect of the legislation and policies as well as from the aspect of the existing institutional framework and the assessment of the extent to which the legislation and the policies are harmonized with the existing international standards. In addition, the analysis of the actual situation for each discriminatory

ground separately is the most important part of this whole exercise since it enables changes to be made in both the legislation and the practice for the purpose of overcoming the existing challenges. The justification for this legal analysis lies in the need to provide a clear picture of the legislation, policies and practices in the area of employment and labor relations with regard to discrimination on the grounds of ethnic origin, age, sex and mental and physical disability. Moreover, the analysis of how the institutional framework is set up and of the actual role it plays in this whole process was of exceptional importance for one to be able to give recommendations on how to make improvements. The methodology for the analysis was a combination of a desk review, semi-structured interviews and case studies. The implementation was overseen by the Ministry of Labor and Social Policy, Commission for Protection against Disacrimination and the OSCE Mission to Skopje. The following general conclusions can be drawn from the analysis: 1) The protection of the individuals in the area of employment and labor relations, including the protection against discrimination in this area is relatively solid. Nevertheless, the legislation contains inconsistences, especially with regard to the definitions and the exceptions to the prohibition of discrimination. Moreover, the lack of sufficient case law and quasi-case law in Macedonia significantly hinders one’s ability to explain how these legal concepts (legal institutes) stipulated in the legislation should be applied. 2) The national policies do not provide for a uniform and strategic approach when it comes to

Analysis of the discriminatory practices in the area of employment and labor relations the persons with mental and physical disability, especially with regard to the employment thereof. 3) The principle of adequate and equitable representation continues to be implemented, but the representation is not at the required level, especially with regard to managerial posts and the smaller ethnic communities. 4) Ethnic discrimination is the most commonly perceived form of discrimination by the citizens. In addition, the cases reported before the protective mechanisms are mostly related to discrimination on this ground, аnd the least on grounds of age and sex. 5) The competent authorities do not keep separate databases about discrimination on grounds of sex, and there is lack of analyses and surveys about the presence of discrimination on this ground in the private sector. 6) The employment of persons with disabilities in shelter companies should be a transitory solution toward their full employment on the open labor market; it should not derogate from this second possibility or from the possibility to become employed in the public sector. As a result, the authors came up with the following recommendations: 1) The availability of legislation does not achieve the desired goal by itself, which is equality of opportunities and equality of the end result for the persons with a certain mental and physical disability, ethnicity, age and sex. More specifically, in order for the legislation to produce the desired effect for these groups of citizens, it should be accompanied by additional measures such as, for example, public awareness raising activities, capacity building in the responsible institutions, maintaining databases, and conducting detailed analysis of the legislation and policies followed by making necessary improvements therein. 2) Improve the legislation in terms of the following: explicit prohibition of discriminato10

ry announcements or statements on grounds of mental and physical disability, ethnic origin and age; provide that instructions to discriminate shall constitute a specific form of discrimination in the Labor Relations Law; specify the institute of reasonable accommodation both in the area of labor relations and in the anti discrimination legislation; further regulate the exceptions to discrimination, especially on grounds of age; enact provisions to protect pregnant women who have signed an employment contract for a definite period of time; and re-examine the criterion general healt ability as one of the requirements for employment that restricts the access for persons with disabilities to jobs. 3) Create possibilities for re-examination of the incentives provided for in article 4 of the Law on Employment of Persons with Disabilities by the courts on a case by case basis in order to ascertain if they are meaningful, and amend the provision in article 4-а paragraph 5 of the same Law which requires expert evidence (findings) and opinion from the relevant Commission under the Ministry of Labor and Social Policy about the ability of a person with mental and physical disability to carry out managerial duties. 4) Continue with the application of the principle of adequate and equitable representation, with a special emphasis on the managerial functions and the situation with the smaller communities. 5) The national strategies dealing with these aspects need to be implemented in order to improve the situation with discrimination, especially the one on the grounds of age and mental and physical disability in the labor field. 6) Raise the public awareness among private sector employers about the discrimination of women on the grounds of their marital status, family status, age and pregnancy status.

INTRODUCTION

he right to work and to have freedom of choice regarding employment of every individual on an equal footing with the others is the basic economic right of human beings, which is based on the postulates of productivity and profitability of every citizen through a freely chosen or accepted employment on the open labor market. This right is еssential in order for one to be able to exercise the other human rights as well, and it constitutes an inseparable part of human dignity. This right is of exceptional importance for all the people regardless of their ethnicity, sex/ gender, mental and physical disability or age, not only for securing livelihood for oneself and one’s family, self-respect, self-realization and independence, but also for creating a working environment that is open, inclusive and accessible for all on an equal footing. Therefore, this right is articulated in the relevant international human rights instruments and is a key economic right stipulated in the national legal system and adequately protected (Poposka, 2013, p.11). The right to work is an individual right that belongs to each individual, but at the same time it is also a collective right. It includes in itself all forms of labour, regardless of whether the job is an independent job or a paid job, both in the public and private sectors. Having said that, it should not however be understood as an absolute and unconditional right to employment. Namely, it includes the right for every human being, including persons with a particular mental and physical disability, age group, ethnicity or sex to decide freely whether to accept or not a job or to choose a job, in other words they should not be forced into it. It is further implied

that the job should be a decent one, i.e. a job that respects the human rights of all the people as well as the rights to safety at work and to an adequate compensation for the work done. In order for the right to work to be enjoyed in all of its forms, several requirements must be fulfilled, such as: availability, accessibility, acceptability and quality (General Comment No. 18 to the International Covenant on Economic, Social and Cultural Rights, 2005, pp. 4-5). The State has the duty, similarly to the other human rights, to respect, protect and guarantee this right for all the people on an equal footing. Namely, the respect for the right to work means that States should refrain from interfering directly or indirectly with the enjoyment of this right; the duty to protect this right requires from the States to undertake measures that will not allow any third parties to affect the enjoyment of the right to work. Finally, the duty to guarantee this right includes an obligation for the State to secure and promote the right to work by adopting adequate legislative, administrative, budgetary, judicial and other measures aimed at the full realization of this right on an equal footing for all.

Analysis of the discriminatory practices in the area of employment and labor relations

SUBJECT OF ANALYSIS

he principle of equality is the basic principle in the human rights context; it is based on the equal value and dignity of all human beings. This principle is embedded in all international and regional human rights instruments. When talking about equality, distinction should be made between formal and substantive equality. Formal equality, or as it is also called legally provided equality, implies a formal recognition that all persons have equal rights and freedoms guaranteed by law, and also implies the equal application of the laws by the state authorities. This understanding of equality is based on the Aristotle’s principle that “equals should be treated equally and unequals should be treated unequally” (Aristotle, Ethica Nicomachea, V.3), i.e. the symmetry approach. This type of equality is considered achieved if there is legal framework according to which all people are equal with regard to the enjoyment of their rights and freedoms without paying attention to the end result, i.e. this type of equality excludes the indirect discrimination from its concept. On the other hand, substantive equality which assumes a broader interpretation of the на concept of equality - implies that the legal equality should be implemented in everyday life and that the results and effects of the application of the laws, policies and practices should not be discriminatory. Special account is taken of the differences characterizing certain protected groups, such as for example in cases of pregnancy (with regard to the ground sex), or the reasonable accommodation for the persons with disability (with regard to the ground 12

disability). Therefore, substantive equality is an indicator that points to the possible inconsistencies in the application of the formal, i.e. legal equality. The goal of any democratic society is to achieve, first and foremost, substantive equality (Jovanovska-Brezoska, 2011, p.16). This type of equality is most clearly expressed in the theory of multidimensional inequality, which is nowadays a very topical issue. This theory highlights the existence of multidisciplinary individual and group identities which are conducive to an increased vulnerability of the protected individual and/or groups, vulnerability that is due to the interdependence between these identities and some complex structural social factors (Arnardóttir, 2009). Conceptually, equality and prohibition of discrimination can be viewed as the positive and the negative formulation of the same principle (Bayefsky, 1990, page 1). Despite the fact that legal instruments are formulated in a manner so as to point out what is prohibited, in this case the discrimination, this prohibition serves the purpose of reaching the ideal of equality, which is the ultimate purpose of the prohibition. By looking at it a posteriori in the light of the case law of international courts, it can be concluded that the principle of equality and the prohibition of discrimination do not require only equal treatment in similar situations but also different treatment in unequal situations (European Court of Human Rights, case Thlimmenos, 2000, paragraph 44 of the judgment), while emphasizing the goal of the anti discrimination legislation - not only equality of opportunities but equality of the end result as well.

In modern life, discrimination is a concept without fixed and cut-and–dried boundaries and should be analysed as such. The legal definition of discrimination implies unequal treatment based on certain personal features or characteristics, i.e. discriminatory grounds; this treatment includes unfounded classifications and differentiations in a given legal context. In the human rights context, discrimination is the difference with regard to the enjoyment of the rights based on different legal or informally built-in grounds and principles (Frckoski, 2005, p.57). Discrimination can be intentional or unintentional depending on the case. It can be a result of an individual behavior/action or of a certain state policy, and can be even part of the legislative framework. Whatever form discrimination takes, it always includes in itself a different, or shall we rather say less favorable treatment of a certain group of persons vis-a-vis the other members of the society. This meaning comes from the very etymology of the word “discrimination”, which originates from the Latin word discriminare, discriminatio, which means making a difference, differentiation, classification. These differentiations are usually based on existing stereotypes and prejudices about a particular protected group. However, not every differentiation is discrimination. Discrimination is only the differentiation that has no legitimate aim or, even if it does have a legitimate aim, the differentiation is not proportional to the legitimate aim that is being pursued (ECHR, case relating to certain aspects of the laws on the use of languages in education in Belgium, 1968, paragraph 10). The scope of the anti discrimination legislation is determined by the following two elements: (i) the formulation of the discriminatory grounds; and (ii) the protection of each of the individual grounds, which depends on the justification and the exceptions allowed by the legislation for each of the grounds (Schiek, Waddington, Bell, 2007). Discriminatory grounds are the protected features that an individual/ group identifies with. They are usually stipulat-

ed in the form of an open list of grounds; there are also documents in which the discriminatory grounds are listed within a closed list such as the Directive of the Council 2000/78/ЕС, the Directive of the Council 2000/43/ЕС, and the EU Charter of Fundamental Rights. Setting aside the four grounds of discrimination addressed in this analysis, the classical grounds known in the theory include: sex, race, color of skin, and ethnic origin. Age and mental and physical disability are two more recent grounds of discrimination protected by the international legislation. By virtue of being more recent, these grounds are not explicitly mentioned in certain important human rights instruments at universal and regional levels. Nevertheless, the practice has shown that the States find it difficult to define the grounds of discrimination, or think that they are self-explanatory. As a result, the courts will need to explain the significance of each of the grounds. National courts are guided by the jurisprudence of the international courts when defining the grounds. The Court of Justice of the EU submitted that all 6 grounds covered by the anti discrimination Directives, including the four grounds addressed in this analysis, should be viewed as legal concepts of the EU that require both an autonomous and a joint interpretation, bearing in mind the context of the provision and the goal that the legislator wanted to achieve (CJEU, case Chacón Navas, 2006, paragraph 40). Defining the grounds is of exceptional importance because it is associated with the defining of the protected group. When talking about the protected group it should be noted that the definition ought to prohibit discrimination on the ground of a protected characteristic (in our case ethnicity, sex, age or mental and physical disability) rather than to protect the persons with that particular characteristic. This would open the room for protecting the persons that are assumed to have the particular characteristic1 as well as the persons that are closely connected with the person featuring a protected charac13

Analysis of the discriminatory practices in the area of employment and labor relations teristic and that can be discriminated against because of that (for example: parent of а child with mental and physical disability, friend of a person with a specific ethnicity, etc). The protection of the persons that are closely connected with a disabled person and that can be discriminated against because of that is very much compatible with the tendency in the EU law substantiated by the judgement of the Court of Justice of the EU in the case Coleman, in which the Court submitted that the Directive 2000/78/ ЕС prohibited any direct discrimination of a mother of a child with a mental and physical disability when the discrimination is based on the disability of her child (discrimination by association). Discrimination by association is explicitly mentioned in several national legislations, such as for example in Ireland, Sweden, Austria, Bulgaria and France (Poposka, 2012, pp. 27-28). Finally, when talking about protected groups it should be mentioned that one person can often encompass several protected characteristics; it can be easily assumed that unequal treatment can occur simultaneously on a number of grounds. These are cases of multiple discrimination, i.e. discrimination on more than one ground, which is not the sum of two discriminatory grounds, but what matters here is the very end result which is quantitatively different, i.e. synergetic. As a result, due to this synergetic trait of the multiple discrimination, it is very difficult to expect any emerging of specific policies and legal solutions for this phenomenon. There are two distinct types of multiple discrimination. The first is called cumulative or additional discrimination which occurs in cases of overlapping of the discriminatory grounds (Hannett, 2003). The second type is called in-

ter-sectoral discrimination which occurs in the event of a unique combination of discriminatory grounds, аnd it is located on the crossroad between the individual grounds protected by the anti discrimination legislation (Fredman, 2005, pp. 13-19). Despite the fact that cases of multiple discrimination are nothing new, the existing anti discrimination legislation is unable to solve this issue because this legislation is designed in a way so as to perceive discrimination as a single problem. It is exactly here where the paradox lies, i.e. the more a person differentiates from the “normal picture”, the more likely it becomes that he/she will be victim of multiple discrimination, and at the same time it is less likely that he/she will receive adequate protection against this type of discrimination. Discrimination can appear in a number of forms, but it usually appears as direct or indirect discrimination, regardless of whether this is stipulated in the law or determined by the case law. Harassement and instruction to discriminate are among the more recent forms of discrimination, and they are included primarily in the anti discrimination legislation of the EU. The protection against discrimination is extremely important in the area of employment and labor, which is the subject of this analysis. Namely, the State is required to recognize the right of the persons with a mental and physical disability, different age group, ethnicity or sex to use, on equal footing with the others, the possibility to make for a living through work, i.e. through a freely chosen and accepted job on the open and inclusive labor market. On the list of measures that the State needs to take in order to enable that this right be enjoyed, the measure No.1 is the prohibition of discrimination on the abovementioned grounds in all forms, sectors

Analysis of the discriminatory practices in the area of employment and labor relations and levels of work. Standards require that discrimination be prohibited with regard to: the conditions for accessing a certain job, self-employment or occupation, including the criteria for selection of candidates for employment; carrier promotions; access to all kinds and levels of professional counselings, training, advanced professional training and advanced vocational training, including practical work experience; conditions for employment and work, including the salary and other compensations as well as firing; becoming member and participating in the activities of trade unions and employers’ organizations or other professional organizations, as well as regarding the benefits from the membership. The same principle applies to the prohibition of harassment. In addition, the States should provide reasonable accommodation for the persons with mental and physical disability at the workplace; to this end, the States should stipulate in their national legislation what the elements of the accommodation are, as well as the facts based on which one shall evaluate if the accommodation was appropriate/reasonable. Furthermore, the prohibition of discriminatory announcements or statements on a discriminatory ground is fully supported (CJEU, the case of Firma Feryn, 2008). It follows from the above that the subject of this analysis is to shed light on the existing discriminatory practices in the area of employment and labor, based on the four grounds of discrimination that are specified in the Law on Prevention and Protection against Discrimination. This constitutes the main thematic focus of the analysis.

(1) According to the opinion of the authors, the goal of the anti discrimination legislation is to protect the individuals against discrimination, and whether the discrimination is based on actual or assumed protected characteristic is totally irrelevant. However, the Directive 2000/78/ЕС does not include explicit protection against discrimination on grounds of an assumed characteristic, unlike the ECHR’s interpretation of Article 14 of the ECHR in the case Timishev v. Russia. Countries that allow such protection: Austria, Hungary, Ireland, Czech Republic, Bulgaria, Belgium, Croatia, Netherlands (only for disability, Malta (only for disability), Slovakia (only for disability).

Analysis of the discriminatory practices in the area of employment and labor relations

THE LAW ON PREVENTION AND PROTECTION AGAINST DISCRIMINATION

As far as the national legislation is concerned, over the past several years the State has developed an anti discrimination legal framework that can be considered as a relatively solid foundation based on which case law will be generated in the future. Article 9 of the Constitution of the Republic of Macedonia contains a general clause about equality which envisages that “[the] citizens of the Republic of Macedonia are equal in their freedoms and rights regardless of their sex, race, color of skin, national and social origin, political and religious belief and property and social status. The citizens are equal before the Constitution and the laws” (Constitution, 1991, article 9). However, this provision has been widely criticized because it uses the word citizens, which leaves the impression that aliens (persons without citizenship and those with a foreign country citizenship) are not protected against discrimination according to this provision. In addition, article 9 does not include some discriminatory grounds that are topical nowadays, such as age or mental and physical disability, and on the top of it, the list of discriminatory grounds is a closed one. Finally, bearing in mind that article 9 pertains to the rights and freedoms of the human being and the citizen, i.e. natural persons, it does not provide for protection of legal persons against discrimination. In addition to these critiques, the Constitutional Court has interpreted this clause quite restrictively for many years when acting in accordance with article 110 paragraph 3, i.e. upon the submitted requests for protection of the human rights and fredoms, which can be clearly seen in the fact that the Constitutional Court declared itself incompetent in almost all the cases 16

of alleged discrimination as well as in the fact that this Court failed to decide on the merits of the cases (Review of the work of the Constitutional Court for 2012, 2013, pp.32-35). As a result, the national legislation began with explicit prohibition of discrimination through the enactment of several laws, among which especially important were those in the area of labor, which culminated in 2010 with the enactment of the Law on Prevention and Protection against Discrimination (LPPD). This Law is expected to fill the legal gaps that exist in our legal system in the area of non-discrimination, and to provide for a more readily available legal protection for all the persons that would appear as alleged victims of discrimination. In addition to the mentioned discriminatory grounds such as sex, race, color of skin, gender, affiliation of a marginalized group, ethnic origin, language, citizenship, social origin, religious belief, other beliefs, education, political affiliation, personal or social status, mental and physical disability, age, family or marital status, property status and health status, this law provides in its article 3 for an open list of grounds with the phrase “or any other ground”. The LPPD prohibits all forms of discrimination, including direct and indirect discrimination (article 6), harassment (article 7), instruction to discriminate (article 9), and victimization (article 10), committed by natural and legal persons both in the public and private sectors, in the areas of employment and labor, education, access to goods and services, housing, health care, social protection, administration, judiciary, science, sports, membership and activities in trade unions, political parties and civil society organi-

zations and other areas, accordingly (article 4). However, the Law does not explicitly prohibit discriminatory announcements or statements on the grounds of age or mental and physical disability. This should be changed and harmonized with the international anti discrimination standards in the future. In addition, article 12 of the LPPD views multiple discrimination as a more severe form of discrimination, i.e. discrimination against a certain person on several discriminatory grounds occurring at the same time. This is of exceptional importance because every human being has different personal characteristics which can lead in many cases to what’s known as cumulative or cross-cutting discrimination. The process of adopting this Law was quite controversial and its full harmonization with the EU legislation is still a debatable issue (2011 Progress report, pp. 55 and 63). Direct discrimination on some discriminatory ground is prohibited in accordance with article 6 paragraph 1 of the LPPD. It occurs when a person was treated less favourably by means of differentiation, exclusion or restriction that results in or could result in his/her rights being taken away, interfered with or limited vis-a-vis another person in a comparable situation, just because of his/her ethnicity, sex, age or mental and physical disability. This definition is not in full compliance with the Directive 2000/78/ЕС because of the wording results in or could result in, thus omitting resulted in. On the top of it, the definition names the types of less favorable treatment thus adding the risk of omitting some type of treatment, which could later backfire if the courts proceed with restrictive interpretation. This definition should be fine-tuned in order to clearly reflect all three elements of direct discrimination.

Regarding the existence of a general justification for direct discrimination, it should be mentioned that the LPPD does not provide for it. On the other hand, the anti discrimination legislation contains a large number of general exceptions provided for in the articles 13-15. For illustration, an action shall not be considered as discrimination in the following cases: if it is a measure provided by law that aims to encourage employment (article 15 paragraph 1 point 2); when laying down a genuine and determining requirement for a job (article 14 paragraph 1 point 2); with the special cases requiring affirmative measures (article 13); the different treatment of the persons with mental and physical disabilities in terms of receiving training and education, with a view to satisfying their special educational needs in order to create equal opportunities (article 15 paragraph 1 point 3); and when providing the special protection envisaged by law (article 15 paragraph 1 point 7), etc.2 Indirect discrimination on a discriminatory ground is prohibited in accordance with article 6 paragraph 2 of the Law. It occurs when a seemingly neutral provision, criterion or practice places, inter alia, a person with a particular ethnicity, age, sex or mental and physical disability or a wider group of these persons in a particularly unfavorable position compared with other persons, except if that provision, criterion or practice arises from a justified goal and the means to achieve this goal are appropriate and necessary. This definition is not in full compliance with the Directive 2000/78/ЕС because it envisages that the protected characteristic only places the persons in a particularly unfavourable position, аnd not places or could place them in a particularly unfavourable position. The Law provides a possibility for a general justification

(2) Especially debatable is the exception specified in article 14 paragraph 1 point 7 of the Law which relates to the freedom of speech, public appearance, opinion and informing of the public, which is not bound by the requirement for necessity and proportionality, but is an absolute exception. So defined, this exception is problematic from a point of view of the international standards because the freedom of expression is not absolute, but is something that can be restricted. One of the reasons for restricting it is the protection of the freedoms and the rights of the others, including the right to equality and non–discrimination. Absolute freedom of expression is in contradiction with the instruction/ incitement to discriminate which is prohibited both by the Law on Prevention and Protection against Discrimination and by the Criminal Code.

Analysis of the discriminatory practices in the area of employment and labor relations of indirect discrimination depending on the existence of a justified goal and of the so-called proportionality test. It should be noted that the courts should play a key role when resolving the dilemma about the extent to which members of a group have been affected in cases of indirect discrimination. In this regard, it is not explicitly forbidden to use statistical data when proving these cases, and the authors think that statistical data could be admissible as evidence in court proceedings provided that the Court has decided on it freely and given this statistical data faith. Harassment on a discrimination ground is prohibited by article 7 of the Law, which defines it as a special form of discrimination. Harassment and humiliating treatment constitute a violation of the dignity of a person or of a group of persons. It arises from the discriminatory ground and has as a goal or as an end result violation of the dignity of the respective person or creation of a threatening, hostile, humiliating or intimidating environment, approach or practice. Harassment is defined more broadly so as to encompass violation of the dignity not only of an individual but also of a group of persons sharing the protected characteristic. However, the definition does not mention that harassment is an undesired treatment, which means that there can be no victim of harassment if the individual wanted and approved of that behavior. While the LPPD is unclear about the question as to who can harass, a partial answer to this question is provided in the Labor Relations Law where it is stipulated that the perpetrator of a psychological harassment at work (mobbing) can be one or more individuals in the capacity of an employer who can appear as a natural person, a responsible person or a worker (article 9-а paragraph 4). When talking about harassment, it should be added that our legislation does not give a clear answer to the question of responsibility of the responsible person (the employer or the service provider) for the harassment committed by third parties. However, it is considered that the responsibility of the employer for the actions of third parties, including for harassment, will depend to a large 18

extent on the nature of their relationship as well as on the future case law regarding this particular issue (The European Network of Legal Experts in the Non-Discrimination Field, 2010, p. 43). Instruction to discriminate (which is called aiding and encouraging discrimination) is prohibited pursuant to article 9 of the LPPD as a special form of discrimination. In this regard article 9 covers both the direct and the indirect incitement, encouragement or instruction to discriminate against someone. Important provisions for the persons with mental and physical disability are article 5 paragraph 1 point 12 and article 8 paragraph 2 (which provides for reasonable accommodation). Namely, the LPPD stipulates that “adjusting the infrastructure and the services means to undertake adequate measures that are necessary in a case in order to enable the person with mental and physical disability to access, participate and advance in the work process, except unless these measures impose a disproportional burden on the employers”. This provision is criticized because it is limiting in nature, i.e. because it refers only to the adjustment of the infrastructure and services. Furthermore, the LPPD does not define the term “adequate measures” for the persons with mental and physical disability; instead, it only explains that these measures are tailored to the specific case. Another important shortcoming of this provision is the fact that the LPPD does not distinguish between the core functions of the work place, on the one hand, and the marginal and unimportant functions on the other hand. And finally, with regard to the issue of disproportional burden as formulated in this law, the national legislation fails to analyze this burden by putting it in correlation with, as the case is in others states, with the size and the status of the legal person (state or privately owned), the volume of the financial outlays, the financial sources of the employer and the possibility to receive funds from public sources or any other assistance. This clarification should be explicitly introduced in the law when it gets amended. The feature that is progressive in article 8 paragraph

Analysis of the discriminatory practices in the area of employment and labor relations 2 and is fully in line with the Convention on the Rights of the Persons with Disability is that the unjustified absence of reasonable accommodation is considered a form of discrimination (Poposka, 2012, pp.302-303). With regard to the procedural provisions, the shifting of the burden of proof is explicitly mentioned in the Law. In addition, the articles 16-33 of the Law provide for the establishment of an equality body – the Commission for Protection against Discrimination - and regulate the procedure before this body.3 The national system provides for 3 procedures in cases of an alleged discrimination: (i) administrative procedure (before the Commission for Protection against Discrimination pursuant to articles 25-28 of the LPPD and before the Ombudsman pursuant to articles 13-27 of the Law on the Ombudsman); (ii) litigation (pursuant to articles 34-41 of the LPPD); and (iii) misdemeanor procedure (pursuant to articles 42-45 of the LPPD). We would conclude by saying that the LPPD, notwithstanding some weaknesses mentioned above, is a relatively solid framework for protection against discrimination based on which relevant case law can be generated, and it can help to define the boundaries of the new legal institutes laid down therein.

(3) More information about the Commission can be found in section IV of this analytical paper: Institutional framework, Heading 1: Commission for Protection against Discrimination.

III 1

Analysis of the discriminatory practices in the area of employment and labor relations

DISCRIMINATION IN THE FIELD OF EMPLOYMENT AND LABOR

Ethnicity

Discrimination on the ground of ethnicity occurs in the cases where individuals are excluded or restricted in terms of the possibility to use or enjoy a certain right only because they belong (or do not belong) to a specific ethnic community or group. If this is transposed into the realm of labor relations, it means that ethnic discrimination occurs when a worker or a candidate for a job is excluded or limited in the use of the right to employment or another right arising from employment just because of his/her ethnicity. A number of indicators show that discrimination on the ground of ethnic origin is quite present in the Republic of Macedonia. This conclusion can be derived from: the perception of the citizens (Petrovskа Beska, Najcevska, 2009, p.13; Krzalovski, 2011, p. 10); the reported cases of discrimination before the Commission for Protection against Discrimination and before the Ombudsman’s Office (Ombudsman’s Office, Annual report for 2009, 2010, 2011, 2012; Commission for protection against discrimination, Annual report for 2011 and 2012); and from the reports prepared by well known international organizations (ЕC, Progress report for Macedonia for 2012, p.18). Of special importance for the Republic of Macedonia is the constitutional principle of adequate and equitable representation of the citizens from all communities in the state administration authorities and other public institutions at all levels (Amendment VI to the Constitution of the RoМ). This principle has a direct bearing on the equality аnd non-discrimination of the non-ma20

jority communities’ members in the Republic of Macedonia, and therefore it is a subject of this study.

1.1. International legal standards In the process of developing the international law after the Second World War, the international community embraced the need for adopting a special instrument for protection against discrimination on the ground of ethnic origin (as part of the definition of “race“). To this end, the Convention on Elimination of all forms of Racial Discrimination (CERD) was adopted. This Convention refers to discrimination on grounds of race, but the definition of race includes explicitly the ethnic origin as a discriminatory ground (CERD, article 1).

1.1.1. United Nations Convention on Elimination of all forms of Racial Discrimination CERD was adopted by the United Nations in 1966. As of September 2013, it has been ratified by 176 states, including Macedonia.4 It also applies to economic and social rights such as the right to work, free choice of work, conditions for work, protection against unemployment, equal

pay, the right to establish and be a member of trade unions, etc. (CERD, article 5.е.) The starting point for CERD in defining discrimination were the definitions in the Conventions of the International Labor Organization (ILO) and UNESCO relating to discrimination in the labor and education areas, respectively. In this Convention, racial discrimination is defined as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms“ (CERD, article 1.1.). According to CERD, whether a person belongs or not to a certain ethnic group depends on their personal declaration unless the opposite is proven. The State may not determine by itself which persons belong to a certain ethnic group (Comity on the Elimination of Racial Discrimination, General Comment VIII, 1990). The State may not even determine which groups are ethnic ones, and as result of that to enjoy protection according to the Convention. This is done on the basis of objective criteria and does not depend on the will and recognition by the State. According to the Comity on the Elimination of Racial Discrimination, the use of different criteria can lead to a different treatment of the groups within one same population (Comity on the Elimination of Racial Discrimination, General Comment XXIV, 1999, paragraphs 1 and 2). Important provisions in the CERD are the following: article 2.2, which relates to the application of special measures; article 1.4, which relates to affirmative actions; article 1.1, which prohibits any differentiation done with the aim to or having as a consequence (effect) the denial of the recognition, enjoyment or realization of the rights and freedoms under equal conditions. This last sentence de facto encompasses the indirect discrimination, which otherwise is not explicitly mentioned in the CERD. Through the provisions enabling special measures and affirmative actions, the CERD promotes the so-called factual equality which takes into account the different starting points of the individuals and the former subordination that contributed to the occurrence of systemic discrimination in the society, which could continue to exist and to perpetuate dis-

crimination if the State pursues a neutral policy. These provisions are important in view of the existence and the justification of the measures undertaken in the Republic of Macedonia with a view to achieving adequate and equitable representation of the members of all communities. However, the basic characteristic of the special measures and of the affirmative actions according to the CERD is their limited nature. These measures are envisaged only with a view to enabling the enjoyment of the freedoms and rights under equal conditions; they are not tantamount to discrimination, i.e. they are considered to be justified measures of differentiation with a legitimate aim according to the CERD; they are limited from the aspect of time as well as areas of application. They are applied where it is needed and for the amount of time needed. They must not continue after their goal has been fulfilled because it would mean unnecessary favouring of the ethnic group(s) to the benefit of which they were initiated in the first place. The CERD legal framework should be the benchmark for the Republic of Macedonia when applying the principle of adequate and equitable representation. As it was mentioned, the concept of discrimination in the CERD encompasses the indirect discrimination as well. CERD also prohibits the discrimination occurring in the private sector, i.e. committed by private entities in the society (CERD, article 2.1.e). This is especially important because of the fact that workers are often discriminated against by private employers in the Republic of Macedonia.

1.1.2. ILO Convention concerning Discrimination in Respect of Employment and Occupation The International Labor Organization (ILO) has adopted a special Convention relating to the protection against discrimination in the labor arena. This is the Convention 111 of the ILO, which prohibits discrimination in the labor field and provides for things such as access to vocational training and advanced training necessary for acquiring specific professional qualifications, access to employment and to particular occupations, and terms and conditions of employment 21

Analysis of the discriminatory practices in the area of employment and labor relations (Convention 111 of the ILO, article 1 paragraph 3). Even though ethnicity is not explicitly mentioned, we consider it to be part of the ground “race“ bearing in mind the definition of this concept in the international human rights instruments.

1.1.3. ЕCHR and Protocol 12 to the Convention and the European Social Charter These three international agreements were adopted by the Council of Europe. They have been ratified by the Republic of Macedonia. They do not have equal importance for the discrimination on the ground of ethnic origin in the labor field. Namely, the European Convention on Human Rights (ЕCHR) contains an anti discrimination clause in article 14. The ethnic origin is again not explicitly mentioned in this clause, but it is certainly covered by the concept of “race“. The anti discrimination clause in article 14 is of accessory nature. Notably, it protects against discrimination only with regard to the rights provided for in the ЕCHR. Bearing in mind that the ЕCHR does not guarantee any right stemming from employment, the anti discrimination clause in article 14 is not of great significance for this study. On the other hand, Protocol 12 to the ЕCHR features a general prohibition of discrimination. The list of discriminatory grounds is the same as the one in article 14 of the ЕCHR, so it can be interpreted that ethnicity is covered by the concept of “race“. The important characteristic of Protocol 12 is that it includes a general prohibition of discrimination in all areas of life in a society. This means that Protocol 12 broadens the scope of application of article 14 of the ЕCHR beyond the rights stipulated in the Convention. The important thing for our study is that this protocol also applies to the rights stemming from employment. The Republic of Macedonia has ratified it. However, its recent entry into force (in 2005) and the small number of states that have ratified it5 are two factors that contributed to the scarcity of case law of the European Court of Human Rights in this field. However, this is something 22

that should change in the future bearing in mind the broad substantive scope of Protocol 12. The revised European Social Charter includes a detailed list of economic and social rights, such as the right to work, the right to equal conditions for work, the right to a fair salary, the right of the workers to be organized, the right to vocational training, etc. Article Е of section 5 provides for an obligation of the States to ensure that the rights enshrined in the Charter are enjoyed without any discrimination. The race as a separate discriminatory ground is mentioned in the same clause and it undoubtedly covers the ethnic origin. This instrument is significant for the Republic of Macedonia for the fact that it was ratified in 2012, when it also came into force.6

1.1.4. Council Directive 2000/43/ЕС implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Article 13 of the Amsterdam Treaty provides that EU institutions have a direct competence to adopt protective measures against discrimination on grounds of sex, racial or ethnic origin, religion or belief, age, disability and sexual orientation, in areas as envisaged in the EU law. Bearing in mind that article 13 gives discretion to the Council with regard to the selection of the measures, the Council adopted the Directive 2000/43/ЕС in 2000. The purpose of the Directive is to regulate in a direct manner the issues around the prohibition of discriminatory behaviors and protection against discrimination. The other grounds are not covered by this Directive. It relates only to discrimination on grounds of racial or ethnic origin. Other Directives exists for the other grounds, and these are discussed in the text below. This is one of the rare instruments that enumerate the ethnic origin as a separate discriminatory ground. The Directive prohibits both direct аnd indirect discrimination (article 2.2. а and b). In order to prove direct discrimination it is necessary to find a comparator, i.е. an individual who is in a

Analysis of the discriminatory practices in the area of employment and labor relations similar situation, in comparison with whom the applicant was treated less favorably. Direct discrimination on grounds of race or ethnic origin may not be justified under any circumstances, except in the cases of the genuine and determining occupational requirements (article 4) or for the purpose of taking positive action (article 5). The Directive also prohibits the indirect discrimination. In order to prove the latter, it needs to be concluded that a certain neutral provision, criterion or practice has produced by virtue of being applied a particularly unfavorable effect on the members of a certain racial or ethnic groups (in comparison with the members of the other groups). In order to establish the existence of indirect discrimination one needs to demonstrate how (i.e. in what ways) the members of the discriminated group were disproportionally affected by the use of neutral provisions, criteria or practices. Indirect discrimination can be justified in cases when the differentiation (criterion, provisions, practice) had a legitimate purpose аnd the measures undertaken were necessary and appropriate. The definitions of direct and indirect discrimination, harassment, instruction to discriminate and victimization in the EU Directives, including in this particular Directive, should be a benchmark for the exercise of defining these concepts in our legislation. The legal inconsistencies that exist in our legislation should be resolved by looking at the EU Directives and at their definitions of discrimination. Any dilemma that may appear should be resolved in the light of these definitions. The substantive scope of the Directive is determined in its article 3. The Directive applies to labor relations, including conditions for access to employment and to self-employment, selection criteria, promotion, access to all levels of vocational training, advanced vocational train-

ing and re-training including practical work experience, employment and working conditions, dismissals, pay, membership of and involvement in organizations of employers and workers, etc. The Directive also applies to areas outside labor (education, social protection, social security, health care, access to goods and services, housing), which differentiates it from the Directive 2000/78/ЕС on Equal Treatment in Respect of Employment and Occupation. Article 4 provides for a limited exception to the prohibition of discrimination whereby difference in the treatment on the ground of racial or ethnic origin is allowed only if it constitutes a genuine and determining requirement for a certain job (these are exceptional cases, like for example actor who plays a certain figure). Article 5 provides for positive action, which means that one follows here the stance accepted within the EU regarding positive measures in the sense that Member States are not obliged to, but they may adopt or maintain measures with a view to preventing or making up for the unfavorable treatment related to racial or ethnic origin. In line with their temporary nature, those positive measures should last until the time of reaching full equality. The positive measures envisaged in article 5 of the Directive are important for the Republic of Macedonia to justify the measures undertaken with a view to implementing the principle of adequate and equitable representation. The Directive also provides for a special protective mechanism, which the Member States should implement in their legal systems. First of all, the Member States should enable access to judicial and administrative proceedings to persons who think that they are victims of discrimination. In the event where the alleged victim submits evidence and thus renders the existence of an unfavorable treatment probable, the bur-

(4) For this, please go to the website of the United Nations related to international agreements, http://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en. (5) As of September 2013, Protocol 12 to the ECHR was ratified by 18 member states of the Council of Europe. Among them are the following countries: Albania, Andorra, Macedonia, Serbia, Montenegro, Croatia, Bosnia and Hecegovina, Estonia, San Marino, Romania, Ukraine, Slovenia, Spain etc. Please go to: http://conventions.coe.int/Treaty/ Commun/ChercheSig.asp?NT=177&CM=&DF=&CL=ENG (6) As of September 2013, the revised European Social Charter was ratified by 22 member states of the Council of Europe. Concerning this please go to: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=163&CM=&DF=&CL=ENG.

Analysis of the discriminatory practices in the area of employment and labor relations den of proof is shifted on the defendant who will need to prove the opposite, that is that there was no discrimination (Directive 2000/43/ЕС, article 8.1.). With this Directive, the States have committed themselves to establishing bodies that will have the duty to promote the concept of equality regardless of someone’s racial or ethnic origin. These bodies shall also have the duty to provide assistance to victims of discrimination in court proceedings, conduct surveys and publish independent reports about aspects related to discrimination as envisaged in this Directive (Directive 2000/43/ЕС, article 13). This article of the Directive has been fully implemented in the Republic of Macedonia with the Law on Prevention and Protection against Discrimination (LPPD) and with the establishment of the Commission for Protection against Discrimination. The case law of the Court of Justice of the EU is rich with regard to the application of the Directive in the labor arena. For example, in the case Firma Feryn, the Court found direct discrimination in the case where the employer publicly stated that he would not hire workers of a particular ethnic origin because such statements usually deter certain workers from applying for the job, whereby their access to the labor market is impeded (CJEU, Firma Feryn, paragraph 28).

1.2. National legal framework Members of several ethnic communities live in the Republic of Macedonia. The issue of ethnic discrimination and the regulation thereof in the legislation is not something new or unknown in our country. Provisions related to racial i.e. ethnic discrimination have been there for quite some time. In spite of this, in order to implement the EU Directives in this area, Macedonia proceeded with the adoption of a comprehensive legislation on protection against discrimination on the ground of ethnic origin. We are referring here to the LPPD and to the specific anti discrimination provisions in the Labor Relations Law.

1.2.1. Constitutional provisions Article 9 of the Constitution of the Republic of Macedonia guarantees the right to equality. This provision serves as a constitutional basis for adopting the anti discrimination legislation. As for the discriminatory grounds, article 9 mentions race and national origin thus we consider ethnic origin included as a protected ground. We are however of the opinion that this “anti discrimination clause“ should undergo modification so as to explicitly mention the ethnic origin as a ground. Of importance is the Amendment VI to the Constitution of the Republic of Macedonia, which enumerates the principle of adequate and equitable representation of the citizens from all the communities in the state administration bodies and other public institutions at all levels as a fundamental value of the constitutional order of the country (Amendment VI to the Constitution of the RM).

1.2.2. Law on Labor Relations The Law on Labor Relations is a substantive law that includes anti discrimination provisions relative to labor relations. As mentioned above, this Law includes definitions of direct and indirect discrimination (article 7), definition of harassment (article 9), exceptions to discrimination (article 8), the shifting of the burden of proof (article 11), damages for discrimination suffered (article 10) as well as the possibility for applying affirmative measures in order to protect some categories of workers (article 8 paragraph 2). The general prohibition of discrimination provides that “the employer must not place the applicant for a job or the worker in an unequal position because of their racial or ethnic origin...“ (article 6). The ethnic origin is hereby explicitly listed as a ground in the Labor Relations Law, which happens as a result of the direct influence of the Directive 2000/43/ЕС implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. As for exceptions, the Labor Relations Law provides only for the “genuine and determining requirement

Analysis of the discriminatory practices in the area of employment and labor relations for employment” (article 8 paragraph 1) as a possible exception to the prohibition of discrimination. This Law however does not provide for the possibility of applying positive measures in terms of employing members of ethnic groups whose position in the society is unfavorable, which is a shortcoming thereof.

1.2.3. Law on Prevention and Protection against Discrimination The LPPD explicitly mentions the ethnic origin as a separate discriminatory ground in article 3. In addition, the LPPD prohibits discrimination in all the areas specified by the Directive 2000/43/ЕС. It needs to be highlighted that the LPPD provides for exceptions with regard to the ethnic origin ground of discrimination. The following should be mentioned here: the genuine and determining requirement for employment (article 14 paragraph 1 point 2); the special measures aiming to equalize the position of the persons from a particular ethnic group that is such because of unfavorable discriminatory treatment (article 15 paragraph 1 point 6); and the measures for protecting the identity of the ethnic minorities (article 15 paragraph 1 point 8). It is on the basis of these provisions that the measures for adequate and equitable representation аpplied in the Republic of Macedonia can be justified. 1.2.4. Legislation for implementing the principle of equitable representation Following the adoption of the Amendment VI to the Constitution of the Republic of Macedonia in 2001, the country proceeded with the adoption and implementation of legislation aimed to achieve adequate and equitable representation of the members of all ethnic communities in the public administration (in the broader sense of the word). Provisions implementing the constitutional principle of adequate and equitable representation are included, for example, in the Law on the Courts (article 43 paragraph 2), the Law on Civil Servants (article 12), the Law on the Public Prosecutor’s Office (article 43 paragraph

2, article 76 paragraph 5) as well as in a number of other laws. These interventions in our legislation can be justified in the light of the LPPD, more specifically the provision in article 15 paragraph 1 point 6. They can also be justified in the light of the CERD and the Directive 2000/43/ЕС implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. What is delicate about the application of this principle is the fact that it needs to be combined with some objective criteria for employment (education, length of service, expertise, skills, competence, professionalism) (Strategy on adequate and equitable representation of the members of the non-majority communities in the RoM, 2007, p. 10). On the other hand, another delicate issue is the question as to when it will be considered that this principle has been implemented. Will it depend on the number of newly employed members of the non-majority communities at the level of the entire public administration, or by area, or maybe by institution? And the question that follows up to the previous one is whether at one point in time - when the targets are met - this principle will stop being applied, and then over time if the numbers drop again - will such measures need to be resumed? These questions are currently left without answers, but the theoretical background to this is that these measures are permitted for as long as they are needed for the goal which is being pursued, and they must not be converted into unnecessary privileges for particular groups. In any case, these measures can be subject of judicial control with regard to the question as to whether they fulfill the requirement of proportionality, which is required by article 13 paragraph 1 of the LPPD.

1.3. National policies The Government of the Republic of Macedonia, together with the responsible ministries, has adopted national strategies that have direct 25

Analysis of the discriminatory practices in the area of employment and labor relations or indirect effects on non-discrimination on the ground of ethnic origin. The most important ones among them are analyzed below.

1.3.1. National strategies on equality and non-discrimination on the grounds of ethnic origin, age, mental and physical disability and sex 2012-2015 This national strategy was adopted in 2012 for the period 2012-2015. It is important to note that this strategy refers to four discriminatory grounds, including the ethnic origin, but it has a broader substantive scope than just the labor area. The general strategic goals such as raising the awareness so as to be able to recognize a case of discrimination, or improving the legal framework on non-discrimination have a bearing, inter alia, on the ethnic discrimination in the labor relations field. Among the strategic goals, those that are important for non-discrimination on the ground of ethnic origin in the labor field are as follows: improved record-keeping on discrimination on the ground of ethnic origin in all the areas, and full implementation of the principle of adequate and equitable representation of the members of all communities (National Strategy on Equality and Non-Discrimination, p. 20-23).

1.3.2. National strategy on equitable representation The Government adopted this strategy on equitable representation in 2007. It defines the goals and the manner in which the principle of equitable representation should be implemented. It also specifies the methods and instruments for encouraging the implementation of this principle in the following sectors: the civil service, the public servants and the public enterprises. The strategy envisages the development of a National Plan for Employment according to the principle of equitable representation in the public sector.

1.4. Situation analysis This part of the study wants to show what the situation is like with discrimination on the ground of ethnic origin in the labor area. It wants to give answers to the questions as to whether discrimination exists, in which forms it appears, if the victims recognize it, if any case has been reported, and what the number of the reported cases is vis-a-vis the overall number of reported cases of discrimination (the ratio). For better visibility, this section will be divided into: (i) perception about the existence of ethnic discrimination, (ii) cases reported before the relevant institutions, and (iii) application of the principle of adequate and equitable representation.

1.4.1. Perception about ethnic discrimination There is perception among the citizens that ethnic discrimination is one of the most common forms of discrimination in the Republic of Macedonia. As a result, the survey Barometer for equal opportunities ranks the discrimination on the ground of ethnic origin second with regard to the question about the frequency of this phenomenon in the Republic of Macedonia. Namely, 55% of the respondents answered that discrimination on the ground of ethnic background was a frequent phenomenon (Petrovska Beska, Najcevska, 2009, p.13).7 The same finding results from another survey entitled Discrimination in the Republic of Macedonia on the ground of ethnic origin, according to which 67.7% of the respondents answered that ethnic discrimination was a frequent phenomenon in the Republic of Macedonia (Krzalovski, 2011, p.10).8 It is worth mentioning that this percentage is higher with the ethnic Albanians. Namely, as many as 84.7% of the Albanians think that ethnic discrimination is a frequent phenomenon in Macedonia, whereas this percentage for the ethnic Macedonians is lower compared to that of Albanians, but it still reflects a significant majority (60.4%) (Krzalovski, 2011, p.10). Broken down by area, the 2009 survey clearly shows that discrimination in the labor relations area does exist, especially with regard to

Analysis of the discriminatory practices in the area of employment and labor relations employment. Namely, the Barometer for equal opportunities survey ranks the ethnic origin the second most important characteristic (after the political party affiliation) that influences the employment of an individual person (Petrovska Beska, Najcevska, 2009, p.37). According to the 2011 survey as well, discrimination is strongly felt in the segment of employment, both in the public and the private sector (Krzalovski, 2011, p.18). As many as 79.3% of the citizens were of the opinion that there was discrimination on the ground of ethnic origin in the segment of employment in the public or private sector. It is important to note that 47.5% of the Albanian respondents think that the ethnic origin is a ground of discrimination in employment, whereas the proportion of ethnic Macedonians who share this opinion is 18.5% (Petrovska Beska, Najcevska, 2009, p.37). According to the 2011 survey, 89.3% of the Albanian respondents think that the ethnic discrimination exists in the segment of employment in the state sector, whereas this percentage is 75.5% for the Macedonians (Krzalovski, 2011, p.18). This confirms that the perception of discrimination is stronger among the non-majority ethnic communities in Macedonia. As regards the personal experience of suffering discrimination, this percentage is lower than the perception i.e. the feeling of the citizens about the existence of discrimination. Namely, 19.1% of the citizens have been victims of discrimination whereas 23.4% witnessed ethnic discrimination. Here also things are divided along ethnic lines. Ethnic Albanians answered that they were victims of discrimination in a larger number of cases (39.3%), compared with 9,9% of the ethnic Macedonians (Krzalovski, 2011).

1.4.2. Reported cases of ethnic discrimination The existence of ethnic discrimination in the Republic of Macedonia is also confirmed with the cases reported before the Ombudsman’s Office and the Commission for Protection against

Discrimination. The situation with the Ombudsman’s Office for the past 4 years has been such that a total of 110 complaints for alleged discrimination have been submitted as follows: 20 complaints in 2009, 16 complaints in 2010, 42 complaints in 2011 and 32 complaints in 2012. It should be mentioned that the number of complaints about alleged discrimination in relation to the total amount of complaints is very low, as follows: 0.55% for 2009; 0.40% for 2010; 0.99 % for 2011 and 0.74% for 2012. Among the 20 complaints submitted in 2009, 4 of them or 20% were on the ground of ethnic origin, whereas in 2010, out of 16 complaints, 9 or 56.3% were on the ground of ethnic origin. In 2011, out of 42 complaints about alleged discrimination, 15 or 25.71% were on the ground of ethnic origin, and for 2012, out of 32 complaints, 9 or 28.1% were on the same ground. As one can see, the citizens are complaining the most about discrimination on the ground of ethnic origin. It is explicitly mentioned in the annual reports of the Ombudsman for 2011 and 2012 that the majority of complaints about alleged discrimination on the ground of ethnic origin fall within the labor area (Ombudsman’s Office, Annual Report for 2011, p. 35; Ombudsman’s Office, Annual Report for 2012, pp. 3738). As far as the Commission for Protection against Discrimination is concerned, the complaints about alleged discrimination on the ground of ethnic origin are also in the lead. In the first working year of the Commission, which was 2011, 13 out of the total of 60 complaints were related to alleged discrimination on the ground of ethnic origin, which comes second on the ranking list after the political affiliation ground (with 15 complaints). Out of these 13 cases of alleged discrimination on the ground of ethnicity, 6 or somewhat below 50% were in the area of work and labor relations (CPD, Annual Report for 2011, p. 9). The total number of complaints in 2012 rose up to 75, the largest

(7) Discrimination on the ground of political affiliation ranks first according to the perception, with 78% of the respondents answering that this is a frequent phenomenon in Macedonia. (8) According to this report, discrimination on the ground of political affiliation ranks first in terms of frequency (89.9%) as well.

Analysis of the discriminatory practices in the area of employment and labor relations group among which (16) was related to alleged discrimination on the ground of ethnic origin. Among those, only 2 are related to alleged ethnic discrimination in the labor area. As of August 2013, a total of 58 complaints have been submitted to the CPD, out of which the largest group of complaints (16) related to discrimination on the ground of ethnic origin, and among those 7 belonged to the area of work and labor relations. As a conclusion, among the total number of complaints before the CPD, those about alleged discrimination on the ground of ethnic origin are ahead with regard to the other grounds, and they are related to a large extent to the labor relations area (this figure is around 50% for 2011 and 2013). These figures match the above perception of discrimination on the ground of ethnic origin in the area of labor. Namely, the perception of the citizens about the existence of ethnic discrimination in the labor area is consistent with the situation concerning the cases brought before the Ombudsman’s Office and the CPD, where the complaints on the ground of ethnic origin in the labor field are in the lead (CPD, Annual Report for 2011, p.8). Likewise, the perception of the citizens that the most affected by discrimination on the ground of ethnic origin are the members of the non-majority communities in the Republic of Macedonia was confirmed as well. This can be concluded on the basis of the ethnic background of the applicants in the cases of both the Ombudsman’s Office and the CPD. As an illustration, out of the total of 16 complaints submitted before the CPD for ethnic discrimination in 2012, 15 were filed by members of the non-majority communities (CPD, Annual Report for 2012, р.17).

1.4.3. Principle of equitable representation The principle of equitable representation is one of the fundamental values of the constitutional order of the Republic of Macedonia, explicitly mentioned in the Amendment VI to the Constitution of the Republic of Macedonia. After following the situation with the adequate and 28

With regard to the cases of discrimination on the ground of ethnic origin in the labor area reported before the CPD, it is worth mentioning the case of discrimination with regard to the open competition for filling of a vacancy in one elementary school. After the complaint has been submitted, the CPD addressed the school, got the vacancy announcement, had a telephone conversation with the school and examined the answer provided by the school. After examining all the facts, the CPD established existence of discrimination on ethnic grounds in the selection of the candidate, following which the competition for filling of the vacancy was annulled, the competition was re-launched and the applicant was eventually hired (CPD, Annual Report for 2011, р. 23). equitable representation in line with its legal competences, the Ombudsman’s Office points to a certain progress in the implementation of the principle of adequate and equitable representation, but the statement that the majority of the institutions have not achieved the compulsory level of representation yet remains valid (Ombudsman’s Office, Annual Report for 2012, р. 44). From a statistical point of view, 2012 marked a mild increase in the total number of employed members of the Albanian (from 17.2% to 17.8%) and Turkish (from 1.7% to 2.0%) communities. The numbers for the other non-majority communities remain at the same level as in 2011, whereas a mild decrease in the total number of employed persons was noticed among the majority community (from 76.3% to 75.2%) (Ombudsman’s Office, Annual Report for 2012, р. 43). The Ombudsman also notes that similarly as in other reporting years, the principle of adequate and equitable representation is better implemented by the state administration bodies than by the public enterprises (Ombudsman’s Office, Annual Report for 2012, р. 40). The

Analysis of the discriminatory practices in the area of employment and labor relations Ombudsman submits that it is necessary to take “additional measures for implementation of the principle of adequate and equitable representation for the members of the less numerous communities” (Ombudsman’s Office, Annual Report for 2012, р. 44).The low level of representation of the small communities, especially the Turkish and the Roma, is also noted in the EC Progress Report on the country for 2012 (EC, Progress report for 2012, р. 17). Regarding the adequate and equitable representation with regard to managerial posts, there was an insignificant decrease in the ethnic Macedonian campus and a mild increase in the number of managerial positions for members of the Albanian and Turkish communities (Ombudsman’s Office, Annual Report for 2012, р.43). However, the situation with the public enterprises is very unsatisfactory with regard to managerial posts since the principle of adequate and equitable representation has not been observed for years in the past there. The negative examples that are mentioned in the Ombudsman’s Annual Report include the public enterprises, the public healthcare institutions, the fund entities, and the independent state authorities (Ombudsman’s Office, Annual Report for 2012, р. 40). The Secretariat for the Implementation of the Ohrid Framework Agreement undertakes measures for implementation and monitoring of the principle of adequate and equitable representation of the members of the communities. The Secretariat has developed a program for employment of the members of the communities based on the analysis it had conducted and based on the information obtained from the Annual Plans of the ministries and other state administration authorities as well as the data obtained from the public enterprises about the representation of the non-majority ethnic communities in the Republic of Macedonia. When the program was being developed, one took into account, inter alia, the recommendations included in the Strategy on Adequate and Equitable Representation as well as the recommendations in the Strategic Plan of the Secretariat, which provides for measures and activities to improve the situation with the adequate and equitable representation.

In the context of equitable representation in the state and public administration, the data of the Secretariat indicates that in 2011 competitions for employing members of the non-majority communities in the country were launched, as a result of which 543 members of the non-majority communities were employed (361 with completed higher education and 182 with completed secondary education). A procedure for new 140 hires from the non-majority communities is now being initiated, and the plan is to hire 100 individuals with higher education and 40 individuals with secondary education degrees (Ombudsman’s Office, Annual Report for 2011, р. 36). The citizens of Macedonia are generally supportive of the affirmative measures for securing equal employment opportunities for the non-majority communities such as vocational training and quotas for employment. The percentage of support in the public sector is 73.2%, whereas in the private sector it is 67.4%. There is no division along ethnic lines for this support (Krzalovski, 2011, р.18-19). On the other hand, this same survey indicates that 66.9% of the respondents are supportive of employments based on objective criteria without taking into account the ethnic criteria. This proportion is higher among the Macedonians (70.9%) but this viewpoint is also shared by the majority of Albanians (54.6%).

Analysis of the discriminatory practices in the area of employment and labor relations

Age

Discrimination on the ground of age is a new form of discrimination, which is very slowly accepted as such in the mind of the people. Generally speaking, the prejudices that the age affects the working ability of the individuals are still strong, and due to it this is considered as a reasonable criterion for making a distinction in the field of employment and labor relations. Regretfully enough, the Constitutional Court of the Republic of Macedonia has reasoned along these lines (Constitutional Court of the Republic of Macedonia, Decision No. 118/2003-0-0, 16 July 2003). Due to such prejudices, discrimination on the ground of age is represented in its most basic forms but it does not get recognized, having as a result an insignificant number of reported cases of discrimination on the ground of age in the labor relations field (Ombudsman’s Office, Annual Report for 2010, 2011and 2012).9

2.1. International legal standards From the point of view of international law, the obligation to protect against discrimination on the ground of age in the labor relations field arises from several conventions. Important for the Republic of Macedonia is the obligations arising from the conventions adopted by the United Nations and by the Council of Europe as well as the legal rules adopted by the European Union. The text below speaks about the International Covenant on Economic, Social and Cultural Rights (ICESCR), the ILO Convention on Discrimination in Employment and Occupation, (Convention 111 of the ILO), the European Convention on Human Rights and Protocol 12 to the

Convention, the European Social Charter and the EU Directive 2000/78/ЕС on Equal Treatment in Employment and Occupation.

2.1.1. International Covenant on Economic, Social and Cultural Rights The ICESCR contains an anti-discrimination clause in its article 2. This clause has an accessory nature and relates to protection against age discrimination only with regard to the rights stipulated in the ICESCR. An important fact for our survey is that the rights arising from employment are stipulated in the Covenant, thus the anti-discrimination clause relates to these rights as well. More specifically, the Covenant stipulates the right to work (article 6), the right to the enjoyment of just and favourable conditions of work (article 7), and the right to form trade unions and join the trade union of one’s choice (article 8). Characteristic of the ICESCR is that age is not mentioned among the discriminatory grounds in the anti discrimination clause; however, the Committee on Economic, Social and Cultural Rights (CESCR) interprets this clause as if it included the age within the category “other status” (CESCR, General Comment No. 20, paragraph 29). This can be the only valid conclusion if account is taken of the open list of discriminatory grounds in the anti-discrimination clause. The Committee agrees that the anti discrimination clause includes both direct and indirect discrimination. They are defined in a similar manner as in the instruments containing explicit definitions thereof (CESCR, General Comment No. 20, paragraph 20). The Committee also agrees that not every differentiation means discrimination on the ground of age. Therefore, the

(9) It turns out from the reports that the Ombudsman’s Office did not receive a complaint about alleged discrimination on the ground of age.

Analysis of the discriminatory practices in the area of employment and labor relations Committee created the proportionality test and requires that there is “a clear and reasonable relationship of proportionality between the aim sought to be realised and the measures or omissions and their effects“ (CESCR,General Comment No. 20, paragraph 13). The basic duty for the States that have ratified the ICESCR in this regard is to prevent discrimination on grounds of age in the enjoyment of the rights, including the rights arising from employment. This stems from the General Comment No. 6 which relates to elderly persons over 60 years and to their economic, social and cultural rights (CESCR, General Comment No. 6).10 This means that there is an explicit obligation, which by the way is rare in the international contract law, to prevent discrimination on grounds of age in the labor relations area, especially against older persons. In addition to their obligation to prevent age discrimination, the States have the duty to enable equal conditions for work for the older persons as well as equal opportunities for establishing and joining organizations of workers (CESCR, General Comment No. 6, paragraphs 23 and 25). Equal conditions for work means that all the rights from employment must be accessible and enjoyable equally for all regardless of the age of the worker. This is a very essential obligation, significant for this survey. The Committee also has a viewpoint with regard to compulsory retirement. Bearing in mind that the latter is broadly practiced, the standpoint of the Committee highlighted in the General Comment No. 6 is that the age for compulsory retirement needs to be established depending on the occupations performed and the working ability of elderly persons, with due regard to demographic, economic and social factors (CESCR, General Comment No. 6, paragraph 28). This means that several factors need to be taken into consideration including the working ability of the workers. A contrario, this means that it is not allowed to disregard these circumstances and to set the retiring age without

giving any argument as to why the worker has to leave the labor market only because of the fact that he or she has reached a certain pre-determined age.

2.1.2. ILO Conventions on Prohibition of Discrimination in Employment and Occupation The International Labor Organization (ILO) has adopted a specific convention related to protection and discrimination in the labor field. This is the Convention 111 which prohibits discrimination in the labor area, and provides for access to vocational training and advanced training necessary for acquiring specific professional qualifications, access to employment and occupation as well as criteria for employment and work and working conditions (Convention 111 of the ILO, article 1 paragraph 3). What is missing in the Convention is the fact that age is not stipulated as a separate discriminatory ground. Only race, color [of skin], sex, religion, political opinion, and national and social origin are listed in article 2 of the Convention where discrimination is defined. The definition does not speak about an open list of grounds; instead, the list is closed. From a legal point of view, this flaw of the Convention is significant because of the fact that it may not be applied to discrimination on grounds of age. In order to mitigate this drawback, and while unable to adopt a special protocol, the ILO adopted on its general conference in 1980 the Older Workers Recommendation. With this instrument the ILO recommends to the states “to promote equality of opportunity and treatment for workers, whatever their age“, and calls upon the States to take measures for the prevention of “discrimination in employment and occupation with regard to older workers“ (ILO, Older Workers Recommendation, 1980, paragraph 3).

(10) We have to highlight that with this General Comment, the Committee highlights that discrimination on the ground of age affects both the young and the elderly people. In addition, the anti discrimination clause from the International Covenant covers both the elderly and the young people. Still, the category of over 60 years old is considered as more vulnerable and therefore a separate General Comment was adopted.

Analysis of the discriminatory practices in the area of employment and labor relations Older workers should enjoy equality of opportunity and treatment with other workers as regards, in particular, access to vocational guidance and service providers offering vocational training; access to employment taking account of their personal skills, experience and qualifications; promotion; remuneration for work of equal value; social security measures and welfare benefits; access to housing, social services and health institutions, in particular when this access is related to occupational activity or employment (paragraph 5). This Recommendation requires from the States to undertake measures enabling older workers to continue in employment under satisfactory conditions, with the participation of the representative organizations of employers and workers. The Recommendation insists on studies to be undertaken in order to identify the types of activity likely to hasten the ageing process or in which older workers encounter difficulties in adapting to the demands of their work (paragraph12). Moreover, the Recommendation requires from the ILO Member States that in case of reduction of the workforce, to make special efforts to take account of the specific needs of older workers by facilitating advanced training or re-training for other industries, by providing assistance in securing new employment or by providing adequate income protection or adequate financial compensation in case of unemployment (paragraph 18). It is also recommended that special measures be taken with a view to ensuring a gradual transition from working life to freedom of activity, and making the age qualifying for an old-age pension flexible. On the other hand, legislations that make the termination of employment mandatory at a specified age are advised to re-examine this arrangement in the light of the paragraph 3 of this Recommendation which relates to discrimination on grounds of age (paragraphs 21-22). This Recommendation is not legally binding for the States. Nevertheless, it is important that the General Conference of the ILO recognizes the importance of discrimination on grounds of 32

age and its negative effects on the older workers. This is why this body has called upon the States to take various measures in order to prevent and eliminate discrimination in the labor field as well as to improve in general the position of older workers and to help them stay at work for as long as possible. This Recommendation relates to protection against discrimination on grounds of age in the labor field and is part of the international “soft law”.

2.1.3. ECHR, Protocol 12 to ECHR and the European Social Charter These three international agreements were adopted by the Council of Europe and all three of them have been ratified by the Republic of Macedonia. However, not all three have the same importance for the discrimination on grounds of age in the labor field. The European Convention on Human Rights includes an anti-discrimination clause in its article 14. Age is not explicitly mentioned in this clause, but bearing in mind the open list of discriminatory grounds the European Court of Human Rights interprets this provision as if it included age among the grounds as well (ECHR, Stec and others v. the United Kingdom). Nevertheless, as mentioned above, given the accessory nature of article 14, i.e. the fact that it provides protection only with regard to the rights stipulated in the ECHR and the latter does not guarantee the right to work, this article does not have a great significance for this study. Protocol 12 to the ECHR stipulates a general prohibition of discrimination. Age is not explicitly mentioned as a discriminatory ground but the explanatory report claims that age is considered to be covered by article 1 of Protocol 12 by virtue of the fact that the list of grounds is open. Important about Protocol 12 is that it includes a general prohibition of discrimination in all the areas of life in a society. In other words, Protocol 12 goes beyond the ECHR. For our survey it is important that Protocol 12 will also be applied to the rights arising from employment. The Republic of Macedonia has ratified Protocol 12 to the ECHR.

Analysis of the discriminatory practices in the area of employment and labor relations The revised European Social Charter stipulates the rights arising from employment including article E in Section 5 which prescribes an obligation for the States to ensure the enjoyment of the rights enshrined in the Charter without any discrimination. Notwithstanding that age is not mentioned in this anti-discrimination clause as a separate ground, there is no dilemma that it is included in the category “other status”. This instrument is significant for the Republic of Macedonia for the fact that the country ratified it in 2012, which was also the year of its entry into force.

2.1.4. Council Directive 2000/78/ЕС establishing a general framework for equal treatment in employment and occupation Based on the Amsterdam Treaty and article 13 thereof, the institutions of the European Union received the competence to undertake measures for fighting discrimination on the ground of age as well. Separate directives were adopted for the grounds sex and racial and ethnic origin; for the grounds religion and belief, disability, sexual orientation and age a single instrument was adopted, which is the Council Directive 2000/78/ ЕС establishing a general framework for equal treatment in employment and occupation. The different treatment of these grounds by the EU law can be noticed in particular in the different substantive scope of the directives. While the first two directives which protect the sex and racial/ethnic origin cover a broader substantive scope, the directive related to the other four grounds covers just labor. In other words, it is only this directive that offers protection against discrimination on the ground of age within the EU in the labor realm. The institutions of the EU do not seem to find the strength needed to adopt a directive that would protect against discrimination on the ground of age (and on the other three

grounds) outside of the labor realm.11 The Directive, as it was mentioned above, explicitly mentions age as a ground. However, the substantive scope of the Directive is too narrow. It relates only to the labor relations in the public and private sectors and covers all the aspects - from the moment of publishing the vacancy announcement, the process of applying for the job, the requirements that the applicants need to meet, the interviews, the act of entering employment, the rights arising from employment, the pay, vacation, promotion, other benefits, vocational guidance, vocational training and advanced training, practical work, membership in organizations of workers, making use of the benefits of such membership, and termination of employment (article 3.1.). This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes, and the Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces (articles 3.3 and 3.4). This Directive contains definitions of direct and indirect discrimination (article 2.2), harassment (article 2.3), instruction to discriminate (article 2.4), victimization (article 11), positive action (article 7), and shifting of the burden of proof (article 10). What narrows down the scope of the directive even more are the provisions enabling non-application of the Directive. In this respect, the provisions excluding the application of the Directive in the areas of social protection and social security as well as armed forces should be mentioned. Moreover, article 2.5 provides that this Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the

(11) Such initiative exists through the Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, SEC(2008) 2180), 2 July 2008. Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:EN:NOT.

Analysis of the discriminatory practices in the area of employment and labor relations rights and freedoms of others. These measures, should they contained some kinds of distinctions with regard to age, would not be considered as discriminatory provided that they have passed the necessity and proportionality tests. Protection against discrimination on grounds of age through this Directive is very negatively affected by the provision of article 6.1, which stipulates that Member States may provide that differences of treatment on grounds of age will not constitute discrimination. An interesting thing here is that this provision applies only to the differences of treatment on grounds of age, whereby age is placed in an unequal position with the other grounds of discrimination arising from article 13 of the Amsterdam Treaty. However, these differences of treatment on grounds of age still have to “pass” the test of necessity i.e. proportionality (legitimate aim and necessity and appropriateness).

cifically refer to age as discriminatory ground, one should not and must not conclude that the Republic of Macedonia lacks the constitutional basis for producing legislation that will prevent and protect from discrimination on the ground of age. The age as discriminatory ground is specifically referred to in article 3 of LPPD, in the Labor Relations Law (articles 6-9) and the Law on Volunteering (article 9). Moreover, Republic of Macedonia is party to international covenants which ban discrimination on grounds of age, such as ICESCR, ECHR and Protocol 12 to the ECHR. This reinforces the position that Macedonia’s legal system contains safeguards against discrimination on grounds of age, yet we are of the opinion that the provision from article 9 of the Constitution of Macedonia should undergo a change that will help avoid unnecessary dilemmas regarding this issue.

2.2. National legal framework

Labor Relations Law is the substantive law containing the anti-discriminatory provisions and precisely concerns labor relations. Labor Relations Law in great part transposes Directive 2000/78/ЕС.12 As for the substantive scope of the Law, it covers labor relations in their entirety, including vacancy announcements, manner of application, rights pertaining from labor relations, termination of the job contract, affiliation to workers’ organizations and rights from affiliation, all the types and degrees of qualifications, retraining and professional training (article 7). Unlike Directive 2000/78/ЕС, the Labor Relations Law does not contain general provision justifying distinctions on grounds of age. This means that in the Republic of Macedonia age distinctions cannot be justified on any basis save those specifically enumerated in the said Law. And those are very few, that is, the essential and decisive employment condition (article 8, paragraph 1, point 1) and measures for special pro-

The Republic of Macedonia has an adequate legal framework for protection against discrimination on grounds of age. The framework was made complete with the enactment of the Law on Prevention and Protection against Discrimination. The national legal framework, despite all of its inconsistencies and terminological discrepancies, still constitutes a good basis for efficient protection against discrimination on the ground of age in the labor relations field.

2.2.1 Constitutional provisions

The principle of equality in the Republic of Macedonia is reflected in article 9 of the Macedonian Constitution. Although this constitutional provision safeguarding equality does not spe-

2.2.2 Labor Relations Law

(12) See comment аbove regarding this part, the part of Labor Relations Law pertaining to discrimination on ground of ethnicity. The same comment applies for discrimination on ground of age.

Analysis of the discriminatory practices in the area of employment and labor relations tection of elderly workers (article 8, paragraph 1, point 2). Any other distinction on ground of age shall be considered as discriminatory in labor relations. LPPD stipulates other forms for justifying distinctions on ground of age in labor relations. Thus forth, in addition to the essential employment condition from article 14, paragraph 1, point 2, provisions exist for justifying distinctions on ground of age in cases of: defining the minimal age requirement, professional experience in the selection process or in granting certain privileges related to employment, if the latter is objectively justified for attaining a legitimate goal, whereby the content of this distinction doesn’t exceed the level needed for achieving the goal (article 14, paragraph 1, point 8); defining maximum age in the employment process which is related to the training needed or due to the needs for rational time limitations linked to retirement as prescribed by law, when this is objectively justified for attaining a legitimate goal, where the content of this distinction doesn’t exceed the necessary level of attaining this goal (article 14, paragraph 1, point 9). This by itself constitutes legal inconsistency and needs to be settled.

2.2.3 Law on Prevention and Protection Against Discrimination LPPD specifically lists the age as discriminatory ground in article 3. In addition to the age as discriminatory ground, important to be said about this law, given that LPPD offers protection from discrimination on ground of age as well, is the wide substantive scope thereof (article 4). Keeping in mind the broad substantive implementation of LPPD, one can freely say that discrimination on ground of age is prohibited in all areas just like the more developed national legislations prohibit it as well. More specifically, it covers areas referred to in Directive 2000/78/ ЕС on equal treatment in employment and occupation. Тhe problematic thing about LPPD as a general anti-discriminatory act is the fact that ex-

ceptions from discrimination are not made very precise. More specifically, since this is a general law (many grounds of discrimination and wide substantial scope), all the possible exceptions from all types of discrimination cannot be listed separately. The recommendation is to incorporate general possibility for justification of distinctions made in relation to the grounds enumerated in article 3, including distinctions made in relation individual’s age. Moreover, the challenge is to harmonize the approach of LPPD with that of the other substantive laws containing anti-discriminatory provisions, as certain confusion is created. More specifically, some laws pertaining to areas covered by LPPD, although adopted later than LPPD, do not enumerate age as possible discriminatory ground. Such examples are the Law on Protection of Rights of Patients, Law on Social Protection and Law on Public Health. Moreover, definitions of discrimination must be harmonized with international standards, including exceptions to discrimination although not directly related to age discrimination but the effects thereon can be felt.

2.3. National policies In accordance with positive legislation, the institutions in charge adopted a number of national strategies for preventing age discrimination in labor relations, and for special protection of certain categories of persons on ground of age. Several of them will be tackled, while the focus should be placed on their implementation.

2.3.1 National Strategy on Elderly People for 20102020 The National Strategy on Elderly People was adopted by the Macedonian Government in 2010, and refers to the 2010-2020 period. The significant thing about our research from the perspective of labor relations is that the Strate35

Analysis of the discriminatory practices in the area of employment and labor relations gy underlines the need to include elderly people in the labor market. This is perceived as a measure for improving quality of life of the elderly population (National Strategy on Elderly People, 2010, p. 25). Measures taken for attaining this goal include different documents such as the Program of the Government of the Republic of Macedonia 2008-2012, “the National Employment Strategy 2010, the National Employment Action Plan 2009-2010 (NEAP), Оperational Plan of the Government for active programs and employment measures for 2009, the Strategy for Demographic Development of the Republic of Macedonia 2008-2015 as well as the Multi-annual Operation Program for Human Resource Development 2007-2013” (National Strategy on Elderly People, 2010, p. 25). For illustration sake, in 2009 the measure “Subsidizing employment of the elderly” covered 576 persons of the planned 629 persons. (National Strategy on Elderly People, 2010, p. 26).

2.3.2 National Strategy for Equality and Non-Discrimination on the ground of Ethnicity, Age, Mental and Physical Disability and Sex 2012-2015 Unlike other strategies aimed at protecting special age groups in labor relations, the goal of this Strategy is precisely protection from discrimination. The strategy is adopted by the Government of the Republic of Macedonia for the 2012-2015 period. In terms of age, general and specific strategic goals are planned, starting from training, strengthening of the institutional capacity, implementing research, leading up to creation of employment conditions for all age groups at the open labor market (National Strategy for Equality and Non-discrimination, p. 24).

2.3.3 National Strategy for Reducing Poverty and Social Exclusion in the Republic of Macedonia for 20102020 This strategy was adopted by the Government of Macedonia and the Ministry of Labor and Social Policy for the 2010-2020 period. One of the main goals of the strategy also includes “increase of employment, as a concept which enables creation of better conditions for effective and efficient involvement of the citizens” (National Strategy for Poverty Reduction, р. 3). The age group in special focus is young people, including measures for their employability at the labor market. Proposed measures include incentives for opening new jobs; measures aimed at gaining new work experiences which will make young people more competitive at the labor market; aligning the education system with labor market needs; providing the necessary information from institutions regarding the needed skills, in order to define better the education and training policies. The Employment Agency is asked to stimulate job search by the unemployed, to improve “the data base of unemployed which will only contain those truly seeking employment”, to apply “personalized approach towards certain groups of unemployed” and “to improve self-help services for individuals with greater chance of finding employment on their own” (National Strategy for Poverty Reduction, p. 1920).

2.3.4 National Employment Strategy 2015 The National Employment Strategy was adopted by the Ministry of Labor and Social Policy for the 2011-2015 period. The strategy focuses also on youth as a specifically affected age category when it comes to employment (National Employment Strategy of the Republic of Macedonia 2011-2015, pp. 7 and 22). Thus forth specific target is set for adopting measures for fighting youth unemployment (National Employment

Analysis of the discriminatory practices in the area of employment and labor relations Strategy of RM 2011-2015, p.32). Improving the position of youth on the labor market is expected to be reached by engaging “complex correlated measures”, especially through aligning the education system with demands of the labor market, volunteering and apprenticeship, increased mobility, active employment programs, training and counseling on active job search, etc. Separate goal in the strategy is increasing employment rate of the elderly (aged 55 to 64), from 34.2% in 2010 to 41% in 2015 (National Employment Strategy of RM 2011-2015, p. 30). Nonetheless the National Strategy does not anticipate measures for increasing the employment percentage of the said category of people. In another document, the Strategy for the Elderly People, the forecast is that with all relevant programs, this target group will be in the focus and that “funds will be obtained and earmarked for employing this category of unemployed persons and they will be one of the priorities in all strategic documents pertaining to employment” (Strategy on Elderly People, p. 26).

2.4. Situation Analysis This part of the research shall demonstrate whether discrimination on ground of age occurs in the Republic of Macedonia, in which forms it occurs and how effective are the legislation and adopted national strategies in protection from age discrimination.

2.4.1. Forms of discriminatory practices on the grounds of age In labor relations, age is used above all as employment criterion. Very often vacancy announcements in the Republic of Macedonia specify the age limit of incumbents as a criterion. Such practices are most often discriminatory because age appears as essential employment condition in only a limited number of job positions. In order to be essential employment condi-

tion, they must meet the condition of indispensability for the said position (article 8, paragraph 1 of Labor Relations Law, article 14, paragraph 1, point 2 of the LPPD). This will hardly prove successful at all times because age doesn’t speak of persons’ capabilities. For instance, one can hardly justify the requirement that the candidate for position of salesperson at showroom for bathroom furniture and accessories must not be older than 30.13 The age as employment criterion is particularly required by private employers, who do not have the knowledge or sensibility that such discriminatory criteria must not be set. Annual reports however say that no complaints have been filed for accounts of discriminatory criteria on ground of age in vacancy announcements before the Ombudsman or the Commission for Protection Against Discrimination. With regards to rights pertaining from labor relations, discrimination on ground of age can occur in different forms. It can appear in relation to the use of vacations, promotion practices, salary, etc. It is important to confirm that such unfavorable treatment is a result of the age of the alleged victim. There are two cases before the Commission for Protection Against Discrimination for allegations of discrimination on ground of age concerning rights pertaining from labor relations. Age is also used as criterion for termination of employment. Such a classical example in the Republic of Macedonia applies to professional soldiers, who, under the Law on Army Service in the Republic of Macedonia, cannot sign service contract after turning 45 years of age (Law on Amendments to the Law on Army Service of the Republic of Macedonia, article 4). Under provisions of the said Law, professional soldiers sign fixed-term work contracts with duration of 3 years, which must not be extended beyond the age of 45 of the professional soldier. The problematic thing in this case is the legal presumption that professional soldiers, after the age of 45 are by definition unfit to perform the professional tasks required by their profession. This represents unfavorable treatment on ground of age, which does not automatically constitute discrimination. This shall be conditioned by the 37

Analysis of the discriminatory practices in the area of employment and labor relations principle of proportionality and indispensability as per article 14, paragraph 1, point 9 of the LPPD. Тhis means that in case of allegation of discrimination, one should justify the existence of such a condition. Similar provision is valid for aircraft pilots, but the approach and selected solutions are far more flexible and beneficial for older pilots. Thus, a pilot who turned 60 shall not fly commercial airline aircraft, unless he/she flies with other pilots and he/she is the only pilot older than 60. Highest age for pilots is positioned at 65, after which pilots cannot fly commercial flights under any conditions. (Rulebook on training, testing, licensing and authorizations of airplane pilots, p. 16). The same applies for this case. The maximum age limit must not be accepted as objective by itself, but should be justified as indispensable according to exceptions prescribed in the LPPD, article 14. Another case of lawful use of workers’ age in labor relations is termination of employment because of worker’s age. To be precise, there is a possibility in the Republic of Macedonia for worker’s employment to be terminated only because he/she reached a certain age.14 The mandatory termination of employment is provided for both in Labor Relations Law (article 104), and in other laws which regulate the public sector, such as the Law on Courts (article 73), Law on Public Prosecution (article 66), Law on Civil Servants (article 108), Public Notary Law (article 14), Law on Higher Education (article 147). These laws provide for termination of employment by the mere fact that the worker reached a certain age, without taking into account the will and work capabilities of the employee. Such a form of termination of employment by definition represents less favorable treatment on ground of worker’s age. Workers affected by these rules can easily make likely the existence of less favorable treatment, by which the burden of proof shifts to the side of state authorities, which need to prove that termination of employment on ground of age is justified in that employee’s case. They need to prove that the above represents a necessary means to attaining certain legitimate goal, such as, for instance, facilitated access to jobs for the younger professionals. 38

In this stage of development of the concept of age-based discrimination one should analyze the arguments for the existence of such form of termination of employment. In case such arguments are ample and research proves that precisely termination of employment by meeting certain age affects the attainment of these legitimate goals, they can be supported. However, given the process of population ageing in global terms, one should analyze the possibility for loosening the concept of mandatory termination of employment on grounds of workers’ age in Macedonia as well. Both cases date back to 2011 and refer to presenting amended work contract to workers before they meet the necessary age for old age retirement, and the location of their transfer as per the new contracts becomes 150 that is 170 km away from the place of residence of the applicants. In the former case, the Commission for Protection Against Discrimination stopped the initiated procedure, because the client filed request and was granted old age retirement, by which all legal grounds for continuing the proceedings cease to exist. In the latter case the Commission found evidence of harassment (and not discrimination) originating from the contract effectuating transfer to a new job position, one year and seven months before the applicant becomes eligible for old age retirement, to a position located 170 km away from the place of residence. As a result of the complaint, a new contract was offered to the applicant by which the person was reinstated back to the original work position, in the branch office in the applicant’s place of residence. (Annual Report of the Commission for 2011, case 6 (p. 26) and case 11 (p. 28).

At the EU level, the European Court of Justice acknowledges that mandatory retirement must not be a priori accepted as justified. For mandatory retirement to be effectuated the condition of indispensability and proportionality must be

Analysis of the discriminatory practices in the area of employment and labor relations met as per article 6 of the Directive 2000/78/ЕС (ECJ, case Palacios de la Villa v. Cortefiel Servicios SA). This approach allows for mandatory retirement to be placed under judicial control and not to affect negatively workers who are able and willing to work. Unfortunately our Constitutional Court overturns such a position. In a case where the Constitutional Court deliberated on mandatory termination of employment on basis of age of members of the Judicial Council of the Republic of Macedonia, the Constitutional Control did not enter the analysis whether the principle indispensability for existence of such a rule has been observed. Quite the contrary, the Constitutional Control found that person’s age is “legitimate criterion for regulating human work activity” and that “people’s age is a natural and objective fact in relation to the termination of the working age” (Constitutional Court of the Republic of Macedonia, Judgment U. no. 118/2003-0-0, 16.07.2003). It is worth mentioning in the labor relations field the trend of reduction of the percentage of employees in the total figure with the increase of age, especially after the age of 55 (State Statistical Office of the Republic of Macedonia, Employees and net wages – situation in October 2009, 2010, pp. 16-17). This indicates possible discrimination on ground of age in the selection of staff but also in employers’ choice whom to fire in case of downsizing. In this area the Government is contemplating measures for facilitated access of workers aged over 55 to the labor market, either through employment programs or subsidizing, or through training and retraining in order to make them more competitive at the labor market (National Strategy for Elderly People 2010-2020, pp. 25-26).

2.4.2. Perception of discrimination on the grounds of age The perception of discrimination on the grounds of age is generally low. There are still entrenched stereotypes regarding the effect of age on the working capability of individuals. This is confirmed by the fact that there are still some elementary manifestations of discrimination on the grounds of age, for example, in the vacancy announcements or in the legislation itself, as stated above. The same is also backed up through the small number of reported cases of alleged discrimination on the grounds of age (see below). According to the Barometer for Equal Opportunities, age is perceived third as a form of discrimination, following political and ethnical background. According to 48.5% of the respondents, age-based discrimination is a common phenomenon in the Republic of Macedonia, while 13% of the respondents think there is none (Barometer for Equal Opportunities, 2009, pp. 13-14). This level of perception of discrimination on the grounds of age does not fit the low number of reported cases before the relevant institutions.

2.4.3. Reported cases of discrimination on the grounds of age In regard to reported cases of discrimination on the grounds of age by the individual within the labour relations, it should be noted that the number of such cases is insignificant. This makes deriving conclusions a difficult task. It is manly owing to the fact that citizens are unfamiliar with the concept of discrimination, especially concerning age-based discrimination, which re-

(7) See vacancy announcement at www.vrabotuvanje.mk dated September 2nd 2013, which reads: “The company “INTER ENGINEERING” seeks for the showroom “MODA DI BAGNO”: a salesperson with high education qualifications (advantage is given to technical school), computer literate, with driving licence, aged up to 30, with or without work experience. Interested candidates should send their CV to: Gradski Zid, block 11/3, by fax to 02-3213-454 or by e-mail to keti@iriteringenering.com.mk INTER ENGINEERING SKOPJE”. (8) Under the Law on Changes and Amendments to the Law on Pension and Disability Insurance, (Official Gazette of RM no. 24/2000), conditions for the old age retirement is 64 years of age for men and 62 years of age for women, together with at least 15 years of payment of pension contributions.

Analysis of the discriminatory practices in the area of employment and labor relations sults from the lack of a solid strategy for promoting the knowledge related to this concept (Barometer for Equal Opportunities, 2009, p. 65). Ignorance of the concept affects the inability to detect the age-based discrimination in society. In other words, citizens are reluctant to initiate procedures for the protection against discrimination on the basis of age, since they are unaware of being discriminated. In cases when classifications are done on the grounds of age, especially, they are accepted as normal, objective and justified. Because of this, citizens have neither courage, nor knowledge to challenge such distinctions as discriminatory. Due to this, precisely, in the period 20092012, only 110 cases of alleged discrimination were reported to the Ombudsman, whereas none of them pertains to the individual’s age as a discriminatory ground (Annual Reports of the Ombudsman for 2009, 2010, 2011 and 2012). The commenced work of the Commission for Protection against Discrimination is expected to be a turning point in this direction. Whatever the case, the first two years’ work of the CPD show

Sex

3.1. International legal standards 3.1.1. UN Convention on the Elimination of All Forms of Discrimination against Women By adopting the Convention on the Elimination of All Forms of Discrimination against Women on 18 December 1979, UN made a significant step forward in protecting and developing human rights in general. The Convention, which is the fruit of the thirty years’ work of the UN Commission on the Status of Women estab40

no spectacular number of cases of discrimination. In 2011, a total of 60 cases of alleged discrimination were reported, three of which were age-based. In 2012, the number of reported cases was 75, three of which, once again, were agebased. In terms of areas, out of the three cases in 2011, two relate to labour relations (explained above), while from the three in 2012, there is but one reported case of alleged discrimination in the labour relations on the grounds of age (CPD, 2011 and 2012 Annual Report). Courts have still not identified a known case of age-based discrimination in the labour relations, while as regards a case before the Constitutional Court concerning the mandatory termination of the working relations mentioned above, the Court decided in way which is rather inappropriate to the existing standards, both national and international. The same rigidness was shown by the Constitutional Court in other cases as well, but not in regard to the labour relations, but instead, it concerned age as a requirement for obtaining a scholarship.15

lished in 1946 and promoting the status of women, is considered to be the most substantial international legal instrument universal to this area. The Convention, which consists of 30 articles, encompasses internationally recognised principles and measures to achieve gender equality, aimed at consistent realisation of women’s rights and increasing her role on all levels and in all parts of the world. Besides civil and political, included also are economical, social and cultural rights of women. The Convention was ratified by the Republic of Macedonia on 18 January 1994. Pursuant to articles 2 and 3, signatory countries are obliged to pursue a policy of eliminating discrimination by means of proper measures and actions, mainly pertaining to the following: embodiment of the principle of equality and pro-

Analysis of the discriminatory practices in the area of employment and labor relations vision of the right to legal protection in the national legislation, amendments to the legislation related to gender issues, elimination of any type of discriminatory customs and practices, undertaking legal and other necessary measures in all fields of society, economic field included, for the advancement of the status of women. Significant to the advancement of the status of women is article 4, underlining that the adoption of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination, and shall be discontinued when the objectives have been achieved. Unlike other international legal documents, the Convention not only does it create conditions to modify legal and social practice, but it also foresees measures aimed at changing social and cultural behavioural patterns of men and women. All this is towards eliminating prejudices, and customs, practices or any behaviour which is based on the idea of inferiority, or rather, superiority of sexes, or which is based on stereotypes about the role of men and women. Meaningful in that sense is also article 7, which provides for measures to eliminate discrimination of women in the political and public life. Articles 10-12 foresee positive measures to eliminate gender discrimination in the fields of education, employment and health care. Moreover, article 15 call for eliminating discrimination of women before the law and according a legal capacity to them. Article 16 provides detailed elaboration of the equality between men and women in matters relating to marriage and family relations. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women The Optional Protocol to the Convention was adopted on 6 October 1999 by the UN General Assembly, and put into force on 22 December 2000. The Republic of Macedonia ratified the Optional Protocol in 2003. Its objective, inter

alia, was to improve and complement the system of mechanisms for legal protection of the rights of women integral to the UN system, and also to stimulate the taking of appropriate measures by countries to combat gender discrimination. The Optional Protocol, thus, introduced the right to an individual complaint and investigation as additional means of monitoring Convention’s implementation. The Optional Protocol also foresees the possibility for the Committee to ask a state party to undertake concrete measures, such as, amendments to the legislation or application of positive measures aimed at the consistent implementation of the Convention.

3.1.2. Directive 2006/54 EC of the European Parliament and the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation The aim of this Directive is to simplify, modernise and promote legislation of the Union in the area of equal treatment of men and women in matters of employment and occupation by bringing together in a single text the main provisions existing in this field, as well as certain developments arising out of the case-law of the Court of Justice of the European Union. Relevant to the EU case-law is the case Bilka, whereas the CJEU considered the different treatment based on employer’s views, by which they justified the exclusion of part-time workers from the pension scheme pointing to the fact that the measure had been taken to stimulate full-time work in order to obtain the necessary staff. The CJEU has not made an unequivocal decision on whether it sees the measure proportional to the different practice

(15) Constitutional Court of the Republic of Macedonia, Decision U.no. 138/2010 from 10 November 2010. Once again the court in this case does not analyse the necessity of the age criterion for acquiring scholarship, but instead finds the criterion objective and appropriate, having regard to the fact that the Minister had a legal right to determine the criteria for acquiring scholarship.

Analysis of the discriminatory practices in the area of employment and labor relations of the rights. From CJEU’s practice one can conclude that the court does not accept justifications of discriminatory treatment based on gender, which are simply based on financial or managerial opinions of employers.

The Directive asks member states to introduce measures necessary to enable efficient compensation for victims of gender discrimination, whereas the text provides no upper limit on the compensation payable.

The Directive ought to secure the realisation of the principle of equal treatment in the field of occupation, underlining three areas of action, namely: access to employment, including vocational training and promotion; working conditions, including pay; and occupational social security schemes.

The Directive foresees provisions as regards the following: the obligation of each member state is to assign a body with competences to promote the principle of equal treatment, as well as to carry out necessary analyses and monitoring concerning application and regard for the principle of equal treatment, and also to provide assistance to victims of discrimination.

The Directive forbids both direct and indirect discrimination, related to harassment, sexual harassment, pay and benefits under the occupational social security schema paid by the employer. The Directive contains provisions concerning the following three principles: equal pay; equal treatment in the social security benefits paid by the employer; equal treatment in the access to employment, vocational training and working conditions. The Directive also points to the principle introduced in article 141 paragraph 4 of the Treaty establishing the European Community, aiming to provide equality between men and women in matters of employment and occupation, whereas the principle of equal treatment will not be a hindrance to member states in taking measures for positive discrimination, that is, measures putting the less represented gender in a favourable position in order to provide its individuals easier access to vocational training or to compensate for the less favourable position in the development of their professional career. This part also includes provisions from Directive 2002/73/EC related to an enhanced protection of mothers, fathers, as well as parents having adopted a child during their leave. Explanation is also provided about the connection to Directive 92/85/EEC (on the introduction of measures to introduce improvements to the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding).

The Direction will also stress out the need to enhance the role of the social partners and civil organisations in promoting the principle of equal treatment. The Directive calls for abolition of or amendment to legislation which is not in line with the principle of equal pay and the principle of equal treatment of men and women. Member states are also obliged to establish a sanctioning system marked by effective, proportional and proper penalties aimed for those violating any right guaranteed by the Directive. Moreover, the Direction calls for the protection of workers, and of those representing their interests, from any unfavourable treatment by employers reacting to initiated court or other proceedings aimed at providing consistent application of the principle of equal treatment. Concerning prevention, the Direction recommends that member states encourage workers and responsible persons in the field of vocational training to undertake measures for the to prevent gender discrimination, harassment and sexual harassment. Member states are asked to take into consideration the gender when preparing legal and other regulations, and when undertaking other activities in the fields covered by the Direction, and to ensure the widest possible dissemination of all relevant information to all parties concerned.

Analysis of the discriminatory practices in the area of employment and labor relations

3.2. National legal framework 3.2.1 Constitutional provisions The Constitution of the Republic of Macedonia provides for and guarantees a wide range of human rights and freedoms as the foundation of the democratic political system. The right to equality as guaranteed in article 9 of the Constitution of the Republic of Macedonia unequivocally indicates sex as one ground for discrimination. Henceforth, and in accordance with the mentioned principle of equality, non-discrimination has been constitutionally proclaimed. The Constitution of the Republic of Macedonia also contains several general provisions treating economic, social and cultural rights, which also affirm women’s special protection, mostly in the capacity of a mother and a worker, thus serving as the basis for protective legislation in the field of family and labour relations. The Constitution furthermore foresees that every job is open to all under equal conditions (article 32).

3.2.2. Law on Labour Relations The Law on Labour Relations represents a basic regulation for the special protection of women in given labour relations. In terms of the protection of women, the theory discriminates between two segments. The first segment pertains to general-specific protection of women at work, which implies protection of all working women regardless of any special conditions or stages they are in. The second segment concerns the protection of women in such stages as pregnancy, birth and maternity, or that is, protection of women as mothers (protection of motherhood). As regards the protection from discrimination, the Law on Labour Relations pays due attention to this issue through several articles (articles 6-12).

In general, the provisions of the Law on Labour Relations regarding discrimination can be divided in two parts, as follows: provisions concerning the prohibition of direct or indirect discrimination, harassment and sexual harassment; and provisions concerning exceptions to the discrimination prohibition, as elaborated in detail in specific chapters and paragraphs of this law for the purpose of protecting a special group of workers (youth, women, mentally or physically disabled persons, and senior persons). The Law on Labour Relations contains a great deal of provisions related to the protection of women, such as restriction to perform underground work (article 160), night shifts for women working in the industry (article 131), and special protection of women under pregnancy, birth and maternity (article 164-171). Unlike the so called general-specific protection encompassing all working women, these women also exercise special protection rights ensuing from other social motives and reasons. Resulting from their special capacity as mothers, there is a universal consensus, seen in almost all types of social legislation, to lay down special protection provisions which provide for specific measures protecting women during pregnancy, birth and maternity. Namely, pursuant to article 25 paragraph 2 of the Law on Labour Relations, the employer must not inquire about the candidate’s family or marital status, and about their family planning. Paraphrasing this provision and, in addition, invoking the provision provided for in article 163 paragraph 1, which stipulates that the employer must not inquire about any data concerning worker’s pregnancy, unless she submits such data in order to exercise her rights on the grounds of pregnancy, one may conclude that the employer must not reject woman’s employment for her pregnancy, in the same manner as the employer must not inquire about pregnancy-related data in any other stage of the labour relations. Moreover, the Law on Labour Relations stipulates that the employer must not terminate the employment agreement of the female worker during pregnancy, birth, maternity, and absence due to children care. This provision forbids lay43

Analysis of the discriminatory practices in the area of employment and labor relations offs for any reason (personal, reasons of guilt, business reasons). In order to improve this legal provision, the decision for the termination of a pregnant worker’s employment agreement, given that the employer had known of her pregnancy, should be considered invalid if the worker within a given period (as additionally determined by another provision of LoLR) submits a medical statement confirming her pregnancy.

2011. Pursuant to article 5 of this Rulebook “[t] he pregnant woman shall use paid leave to perform medical examination before giving birth, if such examination is needed during the working hours”.

There are frequent cases when the employment agreement is made for a period of time, and so, if the worker gets pregnant within that period, the employer refuses to renew the employment agreement. The pregnant woman thus loses the rights given on the grounds of pregnancy, birth and maternity. The legislator should also introduce a provision protecting the pregnant workers in such cases.

January 2012 saw the adoption of the Law on Equal Opportunities of Women and Men. This adoption made further provisions for establishing equal opportunities and equal treatment of women and men, foresaw the introduction of basic and specific measures for establishing equal opportunities, laid down the rights and obligations of the parties responsible for providing equal opportunities, and implemented the procedure for determining non-equal treatment of women and men by the Representative for Equal Opportunities between Women and Men.

Upon the expiration of the maternity leave the worker should be restored to the previous position. Another issue are the cases when assignment requests to a suitable position results in lower pay as compared to the previous one. One also wonders what happens to a pregnant worker who cannot be given a suitable position. Our law provides no answer to this question, but some types of legislation in these cases offer the right to a paid leave for the pregnant worker up until the time the maternity leave comes into effect. Hence, the worker who during pregnancy, owing to the risk of jeopardising her health and safety, is neither capable to resume her duties in the position for which she had concluded an employment agreement, nor can be given a suitable new position, should acquire the right to a paid leave. This might be a useful solution for our legislation as well (Kalamatiev, Ristovski, p. 63). Typical of the LoLR is that it allows for an overall gender equality, offering the possibility for men, too, to make use of the special protection rights related to pregnancy, birth and maternity leave. In regard to the protection of pregnant women, special significance is ascribed to the Rulebook on the minimum occupational safety and health requirements for the work of pregnant workers and workers who have recently given birth or are breastfeeding, adopted in 44

3.2.3. Law on Equal Opportunities of Women and Men

The basic objective of the Law on Equal Opportunities of Women and Men is the establishment of equal opportunities between women and men in the political, economical, social, educational, cultural, health care, civil and any other field in society. The law, inter alia, includes definitions for discrimination based on sex, direct and indirect discrimination based on sex, harassment and sexual harassment based on sex. Although adopted in 2012, the law, nevertheless, has certain flaws, in particular concerning the definition of direct discrimination (article 4 paragraph 3), where types of involuntary action are not mentioned, thus inferring the risk to exclude a type of action which is not stated. The provision should be extended in order to clearly outline the constituent elements of direct discrimination, and encompass cases of gender discrimination especially. The indirect discrimination only points to a condition which places “people of one sex into particularly unfavourable position” (article 4 paragraph 5). The definition is not entirely in line with Directive 2000/78/EC, since it only stipulates that it places people of one sex into particularly unfavourable

Analysis of the discriminatory practices in the area of employment and labor relations position, and not that it places or may place them into particularly unfavourable position. The law provides a possibility to objectively justify indirect discrimination by a legitimate goal and the proportionality test.

tions to discrimination, discrimination based on sex included. Namely, the Law foresees three types of exceptions to discriminations: affirmative measures, unequal treatment, and protective mechanisms for certain categories of persons.

Article 8 paragraph 1 indicates the entities that adopt specific measures, whereas paragraph 4 pertains to the entities which have adopted special measures, pointing out that they are to submit an annual report to the MoLSP not later than 31 March in the current year, relevant for the previous year. The provision is but declarative, since it only indicates that certain legal entities should adopt special measures, and if they have adopted such measures, but failed to prepare an annual plan and report, or have failed both to adopt special measures and to prepare a plan and a report, no penalty is foreseen. We are of the opinion that this provision should be modified so that it includes all entities, or since it is declarative in nature, no penalty should be foreseen.

Article 14 paragraphs 3 and 4 of the Law, state that it shall not be deemed discrimination: the different treatment of persons, inter alia, on the ground of sex in relation to occupation carried out in religious institutions or organisations when, by reason of nature of the particular occupation or activity, or of the conditions in which it is carried out, the sex constitutes a genuine and determining requirement for employment; the different treatment of persons, inter alia, on the ground of sex in relation to education and training for the purposes of carrying out the occupation connected to certain religion. Outlining the exceptions to discrimination, further on, article 15 objectivises certain situations so that they are not deemed discrimination. For example, this includes special protection for the pregnant woman and the mother, as stipulated by law, except for cases when the pregnant woman or the mother does not wish to exercise this right to protection and has notified the employer in writing. The same is valid for the measures aimed at securing a balanced participation of men and women, as long as these measures are necessary.

As to supervision of the positive measures of the law relative to the fields in which they were introduced (article 12 paragraph 1 point 15 and article 37) no provision provides for the manner in which the Ministry will conduct supervision, whether through a special expert service, committee, etc.

3.2.4. Law on Prevention and Protection against Discrimination The Law on Prevention and Protection against Discrimination is almost entirely harmonised with Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Contrary to the Law on Labour Relations, which prohibits discrimination in the field of labour relations, the Law on Prevention and Protection against Discrimination extends the prohibition against discrimination. Regarding discrimination on the ground of sex, article 3 of the law indicates sex as one discriminatory ground, whereas article 6 defines sexual harassment as an unwanted behaviour of sexual character. Articles 14 and 15 provide for the excep-

3.3. National policies 3.3.1. National Strategy on Gender Equality for 20132020 The National Strategy on Gender Equality is a strategic document of the Republic of Macedonia aimed at promoting equal opportunities between women and men in the Macedonian society for the period 2013-2020. The Strategy is an upgrade of the current national policy translated into the National Action Plan for Gender Equality 2007-2012 (herein45

Analysis of the discriminatory practices in the area of employment and labor relations after: NAPGE). This document, among other things, highlights the significance of the gender equality issue, bearing in mind that is adopted by the highest representative body in the country, the Assembly of the Republic of Macedonia. The Strategy is a document which will provide the framework for overall equality between women and men as an intersectoral, horizontal and universal social and political priority. The document will also set up the basic steps and specific directions for complete achievement of gender equality in the Republic of Macedonia (Assessment of the implementation of the 2007-2012 National Plan for Gender Equality, 2012). Section 2.1 of the Strategy refers to human rights/non-discrimination. The promotion of the human rights of women and gender equality is a pending task of all stakeholders. The recent strategic document NAPGE shows solid realisation of the enhancement of human and women rights, through the monitoring of and amendments to the domestic legislation in line with the international standards and EU directives, through dissemination of international documents about the rights of women and establishment of a mechanism recording discrimination on the ground of sex, as well as through efforts to strengthen institutional capacities. As regards decreasing gender-based discrimination in employment, the strategy points out that economic empowerment of women is a crucial factor and an objective in achieving gender equality, which includes several elements aimed toward: eliminating different forms of discrimination; promoting more and better work positions for women, in terms of number of employees and quality of employment, and finally, reducing the feminisation of poverty. Positive progress has been made in the last several years concerning the implementation of gender perspective in market policies and strategies. The Strategy also contains a four-year National Action Plan for Gender Equality, which foresees taking short-term and medium-term ac46

tivities to be realised through annual operation programmes.

3.3.2. National Strategy on Equality and Non-Discrimination on the Grounds of Ethnicity, Age, Mental/Physical Disability and Sex for 2012-2015 In May 2012 the Government of the Republic of Macedonia adopted the National Strategy on Equality and Non-Discrimination, the aim of which was to improve the status of the most vulnerable categories of citizens in society and to ensure a continuous development in achieving equality and non-discrimination. The national Strategy focuses on four grounds for discrimination, gender included. Based on the Strategy, an action plan has also been prepared, with an aim to provide operational and continuous development in the realisation of the right to equality and creation of equal opportunities related to discrimination on the different grounds as defined by the strategy: ethnicity, age, mental/ physical disability and sex. The document elaborates the general strategic objectives defined by the strategy and the special goals concerning the special grounds. The gender has been incorporated as a horizontal issue relative to the three grounds (age, ethnicity and mental/physical disability) owing to dual and multiple discrimination of gender in combination with other grounds.

3.3.3. National Strategy on Reduction of Poverty and Social Exclusion in the Republic of Macedonia for 2010-2020 The Strategy on Reduction of Poverty and Social Exclusion has been prepared as a document depicting the intention of the Government of the Republic of Macedonia to level the degree of in-

Analysis of the discriminatory practices in the area of employment and labor relations clusion and welfare in all strata of society. The strategy has been designed according to given fields and areas in which poverty and social exclusion are noticeable. The strategy contains a separate chapter and an area concerning equal opportunities for women and men. According to the 2007-2012 National Plan for Gender Equality and the Law on Equal Opportunity for Women and Men, stress is put on the need for a systematic approach, by means of the gender institutional mechanisms, in close cooperation with the non-formal prevention and protection system (NGO sector) on both central and local level, for the following: preventing discrimination, especially violence and social exclusion of the female population, which is more prevalent in the rural and other smaller communities, as well as among ethnic groups, formal protection of women’s rights by strengthening the capacities of institutions and services, primarily on local level, and preparing analyses and inspection of the state of affairs regarding women’s social exclusion. The specific strategic objective refers to improving the position of women and reducing both the level of poverty and the risk from social exclusion, which will likely result in a reduced level of risk from social exclusion of women and a more effective social inclusion of the vulnerable and excluded groups of women. Concerning women’s discrimination related to employment, significant is the fact that women are less represented in the labour market, due to their minor participation into the working population, and this is especially valid for women from the ethnicities. Their participation in the grey economy is also noticeable, mainly in the Roma ethnicity, providing assistance within the family (cleaning, care of children, etc.), care for the elderly and sick, and also providing assistance in agriculture and craftsmanship. The active employment policies cover only the category of citizens, who have been recorded in the Employment Service Agency of the Republic of Macedonia. There is the need to initiate active employment policies aimed at the inactive cit-

izens and to introduce activities for encouragement and inclusion of the inactive population in the labour market, women in particular. During the process of creation, implementation and monitoring of the active policies for employment, one should pay due attention to the dual discrimination and difficulties that rural women and women from the ethnicities face in the labour market. Institutions in the future ought to develop methodology which will be instrumental to the set objectives and the target groups, and to find means of introducing provisional measures and other mechanisms allowing for an easier access for the target groups to these measures.

3.3.4. National Employment Strategy 2015 The 2015 National Employment Strategy of the Republic of Macedonia (NES) is a document encompassing mid-term strategies and challenges on the labour market which relate to the period 2011-2015. NES offers an overview of the economic situation and the situation regarding the labour market in the Republic of Macedonia, identifies key challenges related to the labour market, defines the strategic priorities and anticipated goals to be achieved by 2015, and determines the policies that should aid the realisation of the planned objectives. The Strategy contains a special part about tackling unemployment of women, which, despite noting positive trends concerning gender representation, it is observed that the participation of women in the labour market is still low. The activity rate in 2010 measured 50.4%, which is lower by 27.3% compared to men. The employment rate in the same period showed 34%, that is, 18% lower than for men, and the unemployment rate was 32.2%, or 0.3% lower than for men. This analysis mainly ensues from women’s traditional role in the family, especially in the ethnic and rural communities. Overcoming these conditions requires that the objective of the labour market be a larger integration of women by increasing their capacity for employment, in order to achieve an employment rate of 42% by 2015 by the following: increase of competences 47

Analysis of the discriminatory practices in the area of employment and labor relations (knowledge, skills and access to work); development and provision of employment services and training tailored to women’s individual needs and conditions; and overcoming the barriers for the integration to the labour market.

ing discriminated according to employers is the potential difficulty in finding proper substitution during women’s pregnancy, giving birth and care for children, and in cases of a senior woman or a woman with disability, employers are of the opinion that these women are less productive.

3.4. Situation analysis

Surveys show that gender discrimination is a somewhat rarer form of discrimination. It is seen as more common by the Albanian community (probably among Muslims), but not by women. At the same time, discrimination is ranked among those forms of discrimination with the lowest rise in frequency in the last five years (mostly showing stagnation) and it is seen as being commonly linked with discrimination on other grounds. Results show low share of victims of gender-based discrimination. There are more victims among Albanians and among Muslims, than among Macedonians and Orthodox Christians. Victims of gender-based discrimination are very likely to be victims of discrimination on other grounds (Petrovska Beshka, Najchevska, 2009, p. 49).

3.4.1. Perception of discrimination on the ground of sex Although women in Macedonia are equal to men, they are still in an inferior position regarding many fields of social living. As to discrimination of women in employment and in the course of work, women often face several types of discrimination, that is, based on gender/mental or physical disability, gender/colour of the skin, gender/family status, and often are they also victims of harassment. Women in the labour market are at more unfavourable position also owing to their working under no agreement of employment, or under an agreement for a period of time, working part-time, which entails lower pay. Speaking of discrimination on the ground of sex, identifying discrimination presents the most challenging issue (due to both the environment and the victim of discrimination itself). The problem becomes obvious when such instances as absence from public life, greater poverty, greater illiteracy, dropping out, increased number of marriages of female children, domestic violence, are not perceived as manifestations of gender discrimination. Even though the country has an anti-discriminatory legislation, whereas occurrences of discrimination are sanctioned, reality reveals more cases of gender-based discrimination especially obvious in employment advertising. It is a fact that discrimination in general is hard to eradicate because of several parameters and several benefits to the employers. One reason for women be48

Most common type of discrimination on the ground of sex are the vacancy announcements. In the advertisements there is not only gender-based discrimination, but also age-based discrimination (Survey of the discriminatory employment advertisements, 2013). In terms of the economic status in 2011, women had a 24.8 percent share into the “Employer” category from the total number of employers (as opposed to men’s share of 75.2 percent), 17.9 percent into the “Self-employed” category from the total number of persons in this category (as opposed to 82.1 percent men). On the other hand, in the category of “Unpaid family workers” women are represented with 61.7 percent (Labour Force Survey, 2011).

3.4.2. Reported cases of discrimination on the ground of sex According to the sources of the Commission for Protection against Discrimination the submissions for the most part concern working

Analysis of the discriminatory practices in the area of employment and labor relations and work relations, which points to the fact that discrimination is most prevalent in the abovementioned areas, but as regards discrimination on the ground of sex in the field of employment, the situation is somewhat different for the small number of reports submitted on this grounds. Namely, in 2011 there is no submissions whatsoever on the ground of sex, whereas in 2012 there are 3 submissions, and in 2013 5 reports were submitted regarding work relations. Typical of the submissions is that, besides gender, for most of them other type of discriminatory grounds is seen, such as age, health condition ‒ pregnancy, family status and other (2011 and 2012 CPD Annual Report). The Commission has not confirmed gender-based discrimination on any submission in the three years stated. The situation is similar for the legal representative as well. A report for discrimination on the ground of sex concerning employment was submitted only in 2012, upon which no discrimination was confirmed (Analysis of the degree of implementation of the Law on Equal Opportunities of Women and Men, 2011, p. 21). The 2012 report of the Ombudsman, regarding gender-based discrimination only noted some progress in the area, whereas the Ombudsman recommends continued efforts toward equal gender representation. In his report, the Ombudsman maintains that “citizens still rarely report unequal treatment ‒ discrimination, and institutions take little care for the nature of the violation” (2012 and 2013 Annual Report).

off due to her pregnancy, in which case the inspectorate acted in several instances ordering the employer to revoke the termination decision and to bring the worker back (2011 and 2012 Report on the work of the State Labour Inspectorate). Regarding judicial practice, no legal dispute has so far been noted regarding gender-based discrimination in employment, according to the Law on Prevention and Protection against Discrimination. Analyses indicate that in the period 15 November 2012 to 15 May 2013 a total of nine proceedings for discrimination in the workplace (mobbing) were noted, all of which were initiated in line with the Law on Labour Relations. Four lawsuits were filed by women, which related to harassment in the workplace (Analysis of the practical application of the Law on Prevention and Protection against Discrimination, 2013). This state of affairs points to the fact that although women face discrimination in the workplace, they are still discouraged to initiate legal proceedings, mostly because they fear for their jobs, believe that they will be victimised by their employers for filing a lawsuit, or because of other actions.

From the practice of the State Labour Inspectorate one can notice the trend of hiring women for a period of time, whereas if the woman gets pregnant during that period, the employer does not offer the woman a new contract of employment, even though her position is not terminated, but simply filled in by a new person. The inspectorate is unable to act upon such cases, since no protection of the kind if provided for in the Law on Labour Relations, simply because the work relation stops for the expiring of the period of conclusion. The labour inspectorate can only act upon contracts concluded for full-time employment where it is obvious that the worker is laid 49

Analysis of the discriminatory practices in the area of employment and labor relations

Mental and physical disability Discrimination based on mental and physical disability is widely prevalent in the Republic of Macedonia. Surveys show that 33.5% of the Macedonian adult population consider to have been victims of discrimination of harassment on the last 12 months. The perception of discrimination on the grounds of mental or physical disability is quite high, that is, 45% of the respondents believe that discrimination on the grounds of disability is very common to our society (Petrovska Beshka, Najchevska, 2009). When in addition, one considers the opinion of more than half of the respondents (51%), who think that discrimination on many grounds is frequent, and a total of 55.6% of the respondents, who are ignorant of their rights in case they become victims of discrimination, the situation is alarming. Another survey also showed similar results where the perception of discrimination on the grounds of mental and physical disability is quite high, that is, 48.8% and 49.5% of the respondents find discrimination on the grounds of mental disability and physical disability, respectively, to be quite common to our society. Worrisome is the fact that 23.6% of the respondents would feel uncomfortable in the company of a person with mental disability, which often results from stereotypes and prejudices about alleged insanity connected to this group of people, and this represents a serious trigger for future discrimination against them. In addition, 29.9% of the respondents would not vote for a candidate or other official with physical disability, which is another reflection of the entrenched stereotypes abut people with disability as individuals to be taken care of by family and society, and not as individuals who can make decisions for themself, and much less for others. (Simoska, Gaber, Jovevska, Atanasov, Babunski, 2008). Yet, these surveys are based on citizen’s perception and

cannot be substantiated by facts. They are nevertheless a significant tell-tale for the current situation of these persons.

4.1. International legal standards The international legal standards undubiously point out that the right to a decent job and freedom of choice in employment, inter alia, for persons with mental and physical disability is essential to their living and welfare. The protection of this right, therefore, is clearly regulated by the International Covenant on Economic, Social and Cultural Rights. The right to job is provided for in the intertwined articles 6-8, and the antidiscrimination clause is contained in article 2 paragraph 2 of the Convention. Of special interest to the persons with mental and physical disability is the General Comment No. 5 to this Covenant referring to this group, which states that “through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social and cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services” (paragraph 15). This is supported by the fact that the unemployment rate of these persons is three times the rate of the general population, and that these persons usually have the lowest paid jobs and are often segregated from the open labour market. Thereby it is pointed out that the

Analysis of the discriminatory practices in the area of employment and labor relations right to employment “is not realised when the only real opportunity open to disabled workers is to work in so called ‘sheltered’ facilities under substandard conditions” (General Comment No. 5, 1994, paragraphs 20-27, pp. 5-6). Within the regular reporting in relation to this Covenant, of great relevance are the concluding remarks of the Committee on Economic, Social and Cultural Rights prepared upon the initial report for the Republic of Macedonia concerning the implementation of ICESCR in 2006. The Committee, namely, gives constructive criticism about the exceptionally high unemployment rate, especially, inter alia, in relation to persons with mental and physical disability (paragraph 15) and asks the state in the next report to include statistical data on unemployment also viewed by disability (paragraph 35). However, despite the fact that as a universal instrument ICESCR is also applicable to persons with disability, practice shows that this rarely happens. For these reasons, this gap was filled by adopting the Convention on the Rights of Persons with Disabilities, elaborated further in the text. It should be underlined that these legal instruments are ratified by the state and pursuant to article 118 of the Constitution they represent part of its internal legal order.

4.1.1. UN Convention on the Rights of Persons with Disabilities The Convention on the Rights of Persons with Disabilities (hereinafter: CRPD) and the Optional Protocol to it were ratified in 2006, and entered into force on 3 May 2008. Presently, 156 countries have signed the CRPD, whereas 132 have ratified it, 91 has signed the Optional Protocol, and 77 have ratified it. The Republic of Macedonia signed the CRPD on 30 March 2007, and ratified it on 5 December 2011. Furthermore, the country signed the Optional Protocol to CRPD on 29 July 2009, and ratified it on 5 December 2011.

CRPD’s text consists of a preamble and a basic text numbering 50 articles, most of which are hybrid in character, that is, they are interdependent and inseparable, divided into five groups, as follows: introductory articles (articles 1-2), general articles (articles 3-9), substantive articles (articles 10-30), articles regulating implementation and monitoring (articles 31-40), and technical articles regulating issues about signing, accession, ratification and entering into force (articles 41-50). A major part of CRPD pertains to issues of discrimination on the grounds of mental and physical disability, which is the subject of interest of this analysis. There is also a separate article, article 5, which has been deliberately placed in the first part of the Convention with the other articles of general (horizontal) applicability, which allows all CRPD provisions to be interpreted through a non-discrimination and equality-based approach. The language of this article hints that disability-based discrimination is prohibited, and implies not only protection of persons with mental and physical disability, but instead paves the way to protecting the persons who may in the future gain disability, persons believed to have some kind of disability, as well as persons who are in a close relation to a disabled person, and may be discriminated against. Pursuant to article 5 paragraph 2, member states are obliged to prohibit all discrimination on the basis of disability, which, as stipulated in article 2, means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination including, denial of reasonable accommodation.” This clearly entails that prohibiting discrimination based on mental and physical disability focuses on the outcome, instead of the doer’s intention. 51

Analysis of the discriminatory practices in the area of employment and labor relations The CRPD also makes crucial progress, not only by stating that any unjustified denial of reasonable accommodation is discrimination, but also by incorporating this position into an article with horizontal applicability, thus urging its application throughout the entire CRPD. This would be a serious challenge to all countries, developed countries included. Finally, article 5 paragraph 4 provides for specific measures necessary to accelerate or achieve de facto equality of persons with mental and physical disability, for the purpose of reducing the gap between the “norm and reality”. The analysis of employment and work relations should inevitably address article 27 of the Convention, which relates to this field specifically. Namely, the article urges states to “recognise the rights of persons with disabilities to work, on an equal basis with others; [...] to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities”. The list of measures to be taken by member states in order to effectuate this right, first includes prohibiting discrimination on the grounds of disability in all forms, sectors and levels of work. This refers to prohibiting discrimination with regard to recruitment, hiring and employment, and also to providing safe and healthy working conditions (article 27 paragraph 1 point a). The same is valid for the prohibition of harassment, as well as provision of just and favourable conditions and equal remuneration for work of equal value (article 27 paragraph 1 point b). Furthermore, countries are obliged to provide reasonable accommodation to persons with disabilities in the workplace (article 27 paragraph 1 point i). For that purpose, countries in their national legislation should determine the elements of accommodation, as well as the facts on which its appropriateness/rationality will be assessed. Another aspect covered in this article is the protection of labour and trade union rights of persons with disabilities on equal grounds with others 52

(article 27 paragraph 1 point c), which creates the prerequisites for the countries to provide that trade unions are accessible to persons with mental and physical disabilities and are open to include them.

4.1.2. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation Resulting from the amendments introduced to the 1997 Amsterdam Treaty, that is, by means of article 13, the Community gained the capacity to combat discrimination on six grounds, mental and physical discrimination included. In relation to the multiple discrimination in general, and specifically in the field of employment and work relations, one must recognise the Charter of Fundamental Rights16, Directive 2000/78/EC, and the two gender-related directives (2004/113/ EC and 2006/54/EC). Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (hereinafter: Directive 2000/78/EC), is of utmost importance to prohibiting discrimination on the grounds of mental and physical disability regarding this wide field. Ratione materiae of the Directive 2000/78/EC is prohibiting discrimination, inter alia, on the ground of disability in work relations. It prohibits direct and indirect discrimination, harassment and instruction to discriminate (article 2), as well as victimisation (article 11) performed by natural or legal persons as regards both public and private sectors (article 3), whereas it also provides for the prospect of securing reasonable accommodation to persons with physical and mental disability (article 5), as well as taking positive actions (article 7). According to article 3 paragraph 1, this pertains to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions

Analysis of the discriminatory practices in the area of employment and labor relations (point a); access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience (point b); employment and working conditions, including dismissals and pay (point c); membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations (point d). Payments on the grounds of social protection have not been included in Directive 2000/78/EC, whereas it lacks application in the armed forces as well.

horizontal effect, since natural persons can submit a request to other physical or legal person strictly based on a provision ensuing from the national legislation having transposed this directive. At the same time it embraces a minimalistic approach, for it defines the objectives it wants to reach, whereas it bounds countries to minimum obligations, thus leaving them the freedom to choose their own mode of realisation through their national legislation, and allowing them to adopt and implement provisions which are more beneficial, inter alia, to the disabled persons (Tridimas, 2000, p. 69).

As to the rationale personae, Directive’s aim is to set up a general framework to combat discrimination on four grounds, including mental and physical discrimination, in employment, occupation and training (article 1). The terminology used in article 1 of the Directive points to the fact that it is more focused on the individual than on the group to which the individual belongs, that is, it does not protect the group, but it prohibits discrimination, inter alia, on the grounds of disability. This group is deemed protected only in regard to indirect discrimination (article 2 paragraph 2 point b), positive action (article 7), and to some extend as regards reasonable accommodation (article 5), that is, in cases when the concerned persons with disability needs to show their connection to the wider group. The problematic aspect is that Direction 2000/78/EC does not define discriminatory grounds, and this issue, however, was tackled considering the judicial practice of the EU Court of Justice, more specifically in the cases Chacón Navas, Coleman and Jette Ring (Poposka, 2013 pp. 16-20).

4.2. National legal framework

Directive 2000/78/EC is horizontal in character, that is, its application and binding force pertain to both the public and private sector. And yet, the directive does not produce a direct

Regarding national legislation, there are several provisions which, directly or indirectly, refer to protection from discrimination for persons with physical and mental disability17 in the field of work relations, and they may be considered a ground whereon in the future judicial practice may be developed and upgraded through amendments to the existing laws.

4.2.1 Constitutional provisions The Constitution of the Republic of Macedonia, in article 32 stipulates the right to work and related rights thereof. This right is of general applicability and foresees that everyone [including persons with physical and mental disability] has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment (paragraph 1). In addition, it is stated that every job is open to all under equal conditions (paragraph 2), where-

(17) Legislation abounds in terms referring to this group of persons. The author opts for the term persons with mental and physical disability as the term being used in the National Strategy on Equality and Non-Discrimination, but in quoting legal texts and policies the original terms of the cited document is used.

Analysis of the discriminatory practices in the area of employment and labor relations as every employee has a right to appropriate remuneration (paragraph 3), as well as the right to paid daily, weekly and annual leave (paragraph 4). The rights are further regulated by law and collective agreements (paragraph 5). Article 35 paragraph 3 stipulates that the Republic provides protection for invalid persons, as well as condition for their involvement in the life of the society. Article 32 paragraph 2, that is, the non-discrimination clause, should be read in line with article 9 of the Constitution, which contains the equality clause explained above.

provides for the instruction for discrimination, nor does it clearly prohibit discriminatory advertisements or statements grounded on mental or physical disability. The Law in article 24 paragraph 1 unequivocally prohibits the discriminatory advertisements on the ground of sex, and stipulates that: “[t]he employer shall not advertise the job position only for men or for women, unless the designated gender is a prerequisite to performing the work”. In the future, this should be amended and harmonised with the international non-discrimination standards.

4.2.2. Law on Labour Relations

Of special interest is the provision of the law stipulating that “[i]n concluding a contract of employment, the candidate shall not be obliged to submit a proof of their health condition, unless the employer sends the candidate to an examination at own expense” (article 25 paragraph 5), complemented by the following provision: “[t]he examination of the knowledge or skills, or the determination of candidate’s health condition shall not pertain to circumstances unrelated to the work on the given position which is the subject of the employment contract” (article 25 paragraph 6). These provisions fully meet the standards for protection against discrimination of persons with mental or physical disability, but, nevertheless, they are being derogated if one takes into account the provisions of the Law on Civil Servants (concerning employment in the public sector), whereby the general health capability is stated as a requisite for employment (article 9 paragraph 6, and article 13 paragraph 2 point 3). Formulated thus, the provision, although seemingly neutral, still has a disproportional adverse effect to the disabled persons, since the entire group a priori is prevented from applying for employment. Although this criterion would be valid for some groups of persons with disability, still, for the persons with physical or sensory disability, who are of psychophysically capable to carry out the essential tasks on the job, this criterion bears no is irrelevant, and therefore extremely discriminatory. For this reason, there should be a distinction between health

Relevant in regard to the work relations of people with mental and physical disability is the Law on Labour Relations and the Law on Employment of Persons with Disability as lex specialis, elaborated below. Here we dwell on the non-discrimination clauses of the law only. Namely, article 6 of the Law on Labour Relations unequivocally prohibits discrimination, per se, including disability-based discrimination done by natural or legal persons in both the public and private sector. The law in question prohibits all forms of discrimination, including direct (article 7 paragraph 2), indirect (article 7 paragraph 3) and harassment (article 9 and 9a) of the employment candidate and the worker. Discrimination is prohibited in regard to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals and pay; membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations (article 7 paragraph 4). One drawback is the fact that the law neither 54

Analysis of the discriminatory practices in the area of employment and labor relations condition and work capability for persons with disabilities, so that these two are not equated (Poposka, 2013, pp. 23-24). The same type of provisions can also be detected in the Law on Courts (article 45 paragraph 1 point 3), the Law on Advocacy (article 12), the Law on Police (article 95), the Law on Military Service (article 31), the Law on Foreign Affairs, and others. Although this criterion does not always entail discrimination, it should be revised and put under judicial control. Authors, therefore, suggest reconsidering this criterion, which limits the accessibility of disabled persons to work positions in the state administration, judiciary and legal practice, and providing specifications in line with article 25 of the Law on Labour Relations, that is, putting this condition within the context of the occupation itself. Besides the non-discrimination provisions, the Law also foresees special protection, inter alia, for the persons with mental and physical disability (articles 122, 161-162, 164 and 169, 177-178). In addition to the special protection of workers with disability, the Law on Labour Relations also offers protection of workers who are parents of children with disability. For example, according to the law, one of the parents of a child with developmental problems and special educational needs has a right to work half the working hours, whereas the shortened working hours will be considered full working hours (article 169). Moreover, pursuant to article 137 paragraph 3 of the Law on Labour Relations, inter alia, a disabled worker with at least 60% bodily impairment and a worker caring for a child with physical or mental disability have a right to additional three working days of annual leave.

4.2.3. Law on Employment of Persons with Disability As regards persons with disabilities in the field of employment, that is, concerning specific conditions for their employment and work, one needs to mention the Law on Employment

of Persons with Disability. Article 1 of the Law stipulates that “[t]his law shall regulate the specific conditions for the employment and work of persons with disabilities in performing their occupation independently, under an employer or an acting employer, as well as the conditions establishing a trade company for employment of persons with disabilities, and the benefits thereof”. Practice shows that it fails to cover all categories of persons with disability, especially those performing their occupation or profession independently, that is, they work in the capacity of: lawyer, doctor, notary, and the like, thus being unable to realise the benefits ensuing from the law. From the analysis of the provision it follows that the article in itself is rather vague, owing to the fact that it mentions categories of persons which the Law on Trade Companies does not recognise, since a sole proprietor is a natural person who performs a commercial activity, whereas it is unclear how a person independently performing an activity can do so in the capacity of a sole proprietor. This vagueness requires an authentic interpretation of this provision in order to make it clearer, whereas it also allows for amendments and adjustment with the categories recognised by the Law on Trade Companies. A positive aspect is that article 4 of the law foresees a great number of stimulative measures aimed at improving the conditions for employment of persons with mental and physical disability, such as: awarding of non-refundable funds for full-time employment of persons with disabilities, accommodations of the position designated for the disabled person, should there be need, procurement of equipment, tax exemption and securing contribution funds, and financial assistance in working. The stimulative measures are valorised into a number of monthly pays as non-refundable funds paid to the Special Fund formed in line with this Law. These are basically solid solutions, which have been classified as positive action. Still, in a given case, there should be an option to have them revised by the 55

Analysis of the discriminatory practices in the area of employment and labor relations court in order to assess their appropriateness, especially in view of the serious concern about it being misused by the employers, and by the trade companies, in particular. Creating opportunities for employment of persons with mental and physical disability, with no exception, entails providing reasonable accommodation for this group of persons in the process of carrying out job interviews, and regarding the work position. Therefore, article 7 paragraph 2 of the Law provides for reasonable accommodation concerning persons with disabilities, stating that “[i]n hiring a person with disability, the employer shall create proper work conditions and adaptations to the work place depending on the position, the type and level of education, and the type and level of disability of the disabled person being hired”. The legislator fails to elaborate this provision in more detail, thus omitting to point out the type of conditions the employer ought to create. For example: whether they should encompass accommodation to the interviewing process in employment, accommodation to the working hours and practices, and even provision of a professional vocational trainer. By not clarifying the provision, it is left to the courts to delineate the borders of these legal practices. The legislator, furthermore, does not give a detailed explanation as to the kind of adaptation to the work place to be made, but, nevertheless, this has been better elaborated in the Rulebook on the criteria and means to award non-refundable funds from the Special Fund for improvement of the conditions for employment and work of persons with disabilities. Pursuant to article 7 paragraph 2 of this Rulebook, the adaptation encompasses accommodation to the working and utility rooms, to the equipment, working resources, devices and other technical aids. A positive aspect is that besides the obligation to reasonable accommodation, the Rulebook also provides for funds secured through a Special Fund for improvement of the conditions for employment and work of persons with disabilities 56

(articles 8 and 20). But, what is concerning is the fact that the funds contained within the Special Fund are constantly reduced, hence causing a lack of funding for employment and reasonable accommodation aimed at persons with disabilities. Namely, during the period 2000-2013 this law went through 8 amendments, whereas the funds from the special Fund were reduced from the initial 15% to 5% of the total funds from the employment contributions. The authors also maintain that the Special Fund should be abstracted as a legal person in order to strengthen its role and capacity in the system, and to diminish the chances of any misuse. And finally, what is being foreseen is a limited opportunity to utilise this legal practice, that is, a limitation to the personal scope of protection. In order for a person to be able to seek reasonable accommodation, they should be employed in the private sector and to have their disability recognised in accordance with the law (Poposka, 2012, pp. 302-304). From the aspect of non-discrimination, disputable is the provision in article 4a paragraph 5, whereas it is foreseen that “[a] person with disability can be an employer or a person in the function of a responsible person under an employer, if this person acquires a positive opinion from the Commission of the Ministry of Labour and Social Policy ...” Although the authors believe that it wasn’t legislator’s intention to discriminate against the persons with disabilities, but instead acted to their protection (especially concerning persons with mental disability) in the attempt to protect them from possible mistreatment, nevertheless, the formulation of the provision seeking a statement or an opinion about the capability of the disabled person to perform a managing function is discriminatory and should be abandoned. The provision is a classical example of discrimination beginning as a harassment and based on law.

Analysis of the discriminatory practices in the area of employment and labor relations At the end, of special interest is the matter of sheltered facilities. The law and the two rulebooks thereof regulate the issue of employing disabled persons in the sheltered facilities. Article 9 of the law defines the sheltered facility as a “[t]rade company with at least ten persons with full-time employment, if at least 40% of the total number of employees are persons with disabilities, whereas at least half of them are with confirmed disability”. The sheltered facilities are exempted from income tax and all income-related expenditures, and employees of the sheltered facilities who are not disabled are exempted from paying personal income tax, whereas the funds for the pension and disability fund are provided by the state. Another beneficial point is that employment into the sheltered facility is considered regular employment according to the national legislation. One must not forget, though, that the employment into a sheltered facility should be but a transition for the persons with disability to a fully pledged employment in the labour market and the public sector, without any derision to the latter.

4.2.4. Law on Prevention and Protection against Discrimination The employment of persons with mental and physical disability is inevitably linked to the creation of employment opportunities, by guaranteeing this right in equal basis with others. Every right, including the right to work, is therefore connected to the non-discrimination clauses, and it should be analysed from that aspect, too. Although the non-discrimination clauses are contained in the Law on Labour Relations analysed above, still, speaking of disability-based discrimination it is exceptionally important to mention the Law on Prevention and Protection against Discrimination. As analysed previously, the Law prohibits all forms of discrimination committed by natural

and legal persons in both the public and the private sector, inter alia, in the area of work and labour relations (article 4). Of special relevance for the disabled is article 5 paragraph 1 point 12 and article 8 paragraph 2, which stipulates the provision of reasonable accommodation. The Law stipulates that “[a]djustment of the infrastructure and the services is adopting appropriate measures required in some particular case, on order to provide to the person with intellectual and body disability, the access, the participation and advancing in the labour process, unless these measures impose disproportionate encumbrance to the employer”. The criticism of this provision pertains to its being restrictive, that is, it relates solely to the adjustment of the infrastructure and the services. Moreover, the Law does not define the term “appropriate measures” regarding persons with disability, except for clarifying that they are individualised, or needed in the given case. The law also does not differentiate between important and basic work place functions, on the one hand, and marginal and irrelevant functions, on the other, which presents a serious drawback in this provision. As to the matter of disproportionate encumbrance, as formulated within the Law, the national legislation, unlike other countries, neither analyses it, nor does it condition it with the size and the status of the legal persons (public or private), the financial costs, employer’s turnout and source of funding, as well as the possibility to acquire public funds or any other assistance. The authors believe that any amendments to this law require unequivocal placement of this clarification. (Poposka, 2012, pp. 302303). Articles 13-15 provide for the exceptions to discrimination, whereas those relevant to the persons with mental and physical disability are the following: no action will be deemed discrimination if it is a measure foreseen by law and aims at employment promotion (article 15 paragraph 1 point 2)3; in providing for a genuine and determining requirement in employment 57

Analysis of the discriminatory practices in the area of employment and labor relations (article 14 paragraph 1 point 2); in special cases when affirmative measures are taken (article 13); in different treatment of persons with disabilities in training and acquiring education to the effect of satisfying special educational needs aiming at equalisation of opportunities (article 15 paragraph 1 point 3); in providing special protection stipulated by law, inter alia, to persons with mental and physical disability (article 15 paragraph 1 point 7).

4.3. National policies 4.3.1. National Strategy on Equal Rights of Persons with Disabilities for 20102018 In the course of promoting the status of the persons with mental and physical disability, and their integration to the social trends, the Government in 2010 adopted the revised version of the 2010-2018 National Strategy on Equal Rights of Persons with Disabilities. The national strategy is a plan including many activities ensuing from CRPD’s principles aimed at “promoting the status of persons with disabilities to a position of equal citizens with all rights and responsibilities” (National Strategy, 2010, p. 15). It covers seventeen separate units of action, among which is the area of professional and occupational orientation, and employment, of persons with disabilities, the aim of which is to secure equal opportunities for work and employment to disabled persons, by developing and applying systemic solutions based on the needs and capabilities. The following measures are foreseen for achieving this objective: strengthening the capacity of all concerned institutions; developing mechanisms and resources for professional rehabilitation, and development of vocational 58

and professional training; motivating the persons with disabilities; developing the mechanisms for assessment of the working capability of this group of workers; and promoting the employment information systems (National Strategy, 2010, pp. 23-24).

4.3.2. National Strategy on Equality and Non-Discrimination on the Ground of Ethnicity, Age, Mental/Physical Disability and Sex for 2012-2015 The 20120-2015 National Strategy on Equality and Non-Discrimination and the 2012-2013 Operational Plan for Non-Discrimination on the Ground of Mental and Physical Disability are key documents considering the issue of protection against discrimination on the ground of mental and physical discrimination, inter alia, in the area of employment, in terms of policies. The national strategy aims at improving the status of the most vulnerable categories of citizens in society, including disabled persons, and at securing a continuous development in attaining equality and non-discrimination. The National Strategy and the Operational Plan address four distinctive strategic objectives, which refer to: promotion of the employment and work opportunities for persons with mental and physical disability on equal grounds with the others (strategic objective I); provision of education to persons with mental and physical disability on equal grounds with the others (strategic objective II); provision of access and accessibility for persons with mental and physical disability in the area of transport and communication (strategic objective III); and provision of access to goods and services for the disabled persons on equal grounds with the others (strategic goal IV). From the abovementioned it is obvious that strategic objective I pertains to employment,

Analysis of the discriminatory practices in the area of employment and labor relations whereas it underlines the reasonable accommodation to the work place for persons with disabilities, that is, enhancing the capacity of all stakeholders regarding the translation of this norm into practice. At the same time, the amendments to the Law on Employment of Persons with Disability, the numerous adjustments made, and also the raised awareness of the employers in relation to this legal norm are all considered as indicators showing the successfulness of implementing this strategic objective (National Strategy, 2012, pp. 27-28). The strategic objective was further elaborated in the 2012-2013 Operational Plan, which puts stress on the following: promoting the legal framework, strengthening the capacity of all concerned institutions; identifying the models for inter-institutional cooperation, developing vocational and professional training, as well as motivating the persons with disabilities; developing the mechanisms for assessment of the working capability of this group of workers; and promoting the employment information systems; and introducing affirmative measures (positive action) for their employment as active employment measures, such as “empty seat” quotas, and the like (Operation Plan, 2013, pp. 20-24).

4.3.3. National Strategy on Reduction of Poverty and Social Exclusion for 20102020 The 2010-2020 National Strategy on Reduction of Poverty and Social Exclusion considers four priority areas as follows: employment; informal economy and enhancement of entrepreneurship; labour marker; and poverty and social inequality. It should be highlighted that although the persons with disability have not been explicitly discerned as the Strategy’s particular target group, still, in area 1, which refers to employment, special focus if given to creating equal opportunities in employment of persons with

special needs (result no. 4). Two activities are mentioned as within this result: The first pertains to creating equal opportunities for persons with special needs through the preparation of special rehabilitation and integration programmes followed by financial aid on both state and local level. The second concerns the employment of these persons by making efforts and providing funds to improve their skills and knowledge (National Strategy, 2010, pp. 35-39.) \

4.3.4. National Employment Strategy 2015 The basic document and a framework defining the employment policies is the 2015 National Employment Strategy, which, in its priority objectives, unfortunately does not precisely cover the increase of the employment rate for persons with disabilities. Bearing in mind that these persons as a group are marked by a high unemployment rate and a low labour-market activity rate, their lack of coverage in the Strategy gives room for concern. These persons are only to be included within the wide definition of the term “other vulnerable groups” covered in Guideline 7: Increased participation into the labour market and reduced structural unemployment, of the Strategy. In addition, the National Employment Strategy is carried out through the 2012-2013 National Action Plan on Employment. The analysis of this action plan reveals that the persons with disability have been directly mentioned only in Goal 3: Increasing employability (in Activity 7 ECDL training and certification of unemployed persons and persons with disability), and Goal 4: Social inclusion of disabled persons and other vulnerable groups (in Activity 1 - Subsidies for the employment of disabled persons according to the Law on Employment of Persons with Disability). This merely reiterates the lack of strategic approach to this group of persons (Poposka, 2013, p. 34). 59

Analysis of the discriminatory practices in the area of employment and labor relations

In the submission filed to the Commission the claimant stated that he/she did not receive a pay ensuing from the labour relation, based on mental and physical disability. Pursuant to article 27 paragraph 1 of the Law, the CPD, pending reply, forwarded the submission to the person against whom it was filed. The Commission considered the reply from the party of the potential discriminator, who claimed that the bank account of the club was blocked for more than a year, for which they were unable to pay the person. Upon determining the state of affairs, the Commission identified violation of the labour relations rights, but not discrimination grounded on mental and physical disability in the case mentioned (CPD, 2012 Annual Report, p. 22). From the analysed above it can be concluded that in the lack of essential criteria, affirmative measures and other mechanisms supporting and covering persons with mental and physical disability, the active employment policies wiould not be able to reach the desired goals set in the National Employment Strategy, thus marginalising this group of citizens even further.

4.4. Situation analysis 4.4.1. Perception of discrimination on the grounds of mental and physical disability The number of employed persons with mental and physical disability compared to the overall population employed in the Republic of Macedonia is quite small. The number of employed persons with disabilities measures 2,394, 814 of whom are women, and in addition to this, the number of persons with mental and physical dis60

ability on rehabilitation is 147, whereas 42 are women (State Statistical Office, No. 2.4.11.16, 2011, pp. 28-29). From those employed and sent to rehabilitation, most of the persons are with developmental disability (1,081 persons), then with physical impairment (538 persons), with hearing impairment (286 persons), and finally those with vision impairment (172 persons), whereas there is also a category of others (465 persons). At this point, the unemployed persons with mental and physical disability are distributed among all age groups (aged 15 to 60 and above), most of whom have low qualifications, that is, 1,569 persons, whereas only 35 persons have higher or university education (Employment Service Agency, 2010). Namely, from the total number of unemployed persons with disability, 858 are persons with mental disability, 448 are persons with physical disability, 301 are labour invalids, 255 are persons with combined disabilities, 134 are persons with hearing impairment, 119 are persons with vision impairment, 67 are military invalids, 37 have speech impairment, 12 are war invalids, 72 are persons with other categorised types of disability, and 23 persons are with other uncategorised types of disability (2010-2018 National Strategy on Equal Right of Persons with Disabilities, p. 9) Surveys into the area point to fact that the persons with mental disability, followed by the persons with physical disability, are discriminated the most in employment, owing to the numerous prejudices against them. For example, it was noted that, although people for the most part do not mind cooperating with a disabled person in the work place (72.3%), nevertheless, 29.8% of the respondents would not accept a disabled person as their superior (Simoska, Gaber, Jovevska, Atanasov, Babunski, 2008, p. 35 and pp. 50-51). This is also confirmed by other surveys, which indicate that the persons with disability are not accepted as employed on equal basis with others (NGO Ergos, Skopje, 2003), a phenomenon manifested with the receiving of smaller pay for

Analysis of the discriminatory practices in the area of employment and labor relations the same work, lesser chances for promotion and harassment in the work place. A total of 25.9% of the respondents with physical disability believe that they have been discriminated in the work place, with the people in the age group 3549 considering themselves as discriminated most often. Another hot issue ensuing from this survey is its problematising the multiple discrimination of women with physical discrimination and of older persons (aged above 50) with physical disability (Jovanova, Dimitrijoska, Tomovski, Ignjatovik, 2009). Viewed from both legal and practical percpective, of special interest for consideration is the issue of sheltered facilities. Data acquired from the State Statistical Office show that as of 31 December 2010 there are 268 employment services employing a total of 2.394 persons with disability, most of whom have been employed in Skopje (416), Veles (337) and Bitola (301) (State Statistical Office, No. 2.4.11.16, 2011, p. 43). Surveys conducted, especially in regard to persons with physical disability, showed that 55.8% of all employees with physical disability were employed in the sheltered facilities, most of which pertain to the provision of services. The survey indicated that women with physical disability are most often employed in the sheltered facilities (49.1%), and then the open labour market (27.8%), while physically disabled men are most often employed in the open labour market (33.3%), and then the sheltered facilities (30%). Employment in the public sector is rather low, negligible even, and measures 2.6% (Jovanova, Dimitrijoska, Tomovski, Ignjatovik, 2009).

4.4.2. Reported cases of discrimination on the grounds of mental and physical disability From the statistics of the Commission for Protection against Discrimination, it can be determined that in 2011, a total of 63 submissions were filed, of which only 6, that is, 9.52% per-

A physically disabled person filed a submission to the Commission claiming that article 1 of the Law on Employment of Persons with Disability is not in line with article 35 paragraph 3 of the Constitution of RM, since it does not encompass all categories of persons with disability, especially those who perform their occupation or profession independently (lawyers, doctors, notaries). Namely, according to the legal framework thus set up, the persons with mental and physical disability cannot exercise the privileges provided by the state for employment of persons with disabilities, and therefore, they are put in an unfavourable position relative to the other persons with disability. In this case, the Commission stated that it had no competence to act upon the request. At the same time, the Commission recommended that the claimant, in cooperation with the Commission for Protection against Discrimination to initiate an authentic reading of article 1 of the Law on Employment of Persons with Disability. Thereby, it will be determined whether article 1 also covers the category of natural persons independently performing an occupation, since the article itself is rather vague because it mentions persons independently performing activity at a sole proprietor, employer, whereas the Law on Trade Companies does not recognise such a category. A sole proprietor is a natural person who performs a commercial activity as an occupation, and it is unclear how a person independently performing an activity can do so in the capacity of a sole proprietor (CPD, 2012 Annual Report, p. 22). tain to alleged discrimination on the grounds of mental and physical discrimination, whereas the most frequent area for discrimination was work and labour relations measuring 47.62% of all submissions filed (2011 CPD Annual Report, 2012, pp. 9-11). In addition, in 2012, the Commission received a total of 76 cases, of which 61

Analysis of the discriminatory practices in the area of employment and labor relations eight, that is 10.53%, concerned alleged discrimination on the grounds of mental and physical discrimination, and the area with the greatest prominence of discrimination was 36.84% of all submissions filed. The Commission, thus, underlines that “[t]he discrimination of persons with mental and physical disability is existent in all areas of social and private life, whereas it is most expressed in the area of work and labour relations. Their position can best be seen taking into consideration the high unemployment rate, the low education, poverty, the institutionalisation risk, as well as the restricted access to public facilities and services”. (2012 CPD Annual Report, 2013, p. 22) From the total number of submissions to the Commission for Protection against Discrimination during 2012 on the grounds of mental and physical disability, the Commission acted upon four. Pursuant to article 28 of the LPPD, the Commission, having determined the physical condition, in one case concluded that there was no discrimination. Pursuant to article 26 of the Law, the Commission did not act upon three submissions, that is, on two submissions the Commission found no basis for discrimination, while on one submission it determined that it had no competence to act (2012 CPD Annual Report, 2013, p. 22). Along with these cases of discrimination, discrimination-related submissions were filed on the grounds of physical and mental disability based on the legal provisions, for which the Commission stated that it had no competence to act.

According to the data from the Ombudsman’s 2012 Annual Report, 7.04% of the total submissions pertain to the labour relations rights, whereas most of them refer to employment, determination of employment status, transformation of labour relations, and to allocation. On the other hand, only 0.74% of all submissions concern non-discrimination, none of which relates to an alleged discrimination on the grounds of 62

mental and physical discrimination. Based on the data from the analysis conducted by the Ombudsman, it can be concluded that there is a cyclic inclusion of mentally or physically disabled persons in the labour market. Namely, their number in 2007 was 636, most of whom were intellectually disabled persons, in 2008 the number of employed persons was 691, whereas persons with intellectual disability were once again most prominent and measured 40% of the overall number. The number of persons in 2009 who established labour relations rose to 769, whereas in 2010 the number of persons on established labour relations dropped to 504, only to rise in 2011 to 604 (Situation and challenges ‒ Analysis of the employment of persons with disability, Ombudsman, 2012, p. 24-28). The Ombudsman thereby concluded that the persons with disability are employed only in sheltered facilities, that they are underrepresented in the public sector, and that there is no proper communication between the employer and the person with disability for the purpose of accommodation to the work place. At the same time, the Ombudsman concluded that there is a need to promote the process of categorising the disabled persons and that the determination of the working position is solely a matter of agreement between the person and the employer, and not the Commission of the MoLSP determining the working capability (Situation and challenges ‒ Analysis of the employment of persons with disability, 2012, pp. 24-28).

Analysis of the discriminatory practices in the area of employment and labor relations ment in the work place, the misuse of their labour, as well as the participation or membership to a trade union (Analysis of the employment of persons with disability, 2013). According to the data analysis, persons with disabilities tend to enter labour relations with no knowledge of their rights, whereas up to 43% of the respondents claimed ignorance of their labour relations rights and, in addition, 16% were not sure whether they are familiar with those rights. From those aware of their own rights, when asked if the employer respected their rights, 58% gave a negative response (Analysis of the employment of persons with disability, 2013). A major percentage, that is, 68% believe that their superiors treated them differently for their disability. From the total number of respondents, 18% stated that they did not perform the activities for which they had been hired, 10% believed that they are discriminated, 22% were of the opinion that they were treated differently than the other employees, 15% claimed that they are neither paid nor recorded as employees, 15% said they worked overtime, only 4% complained about the working conditions and equipment, 4% noted that they live at a great distance from their work place, 3% stated that they had no understanding with the employers concerning their condition, and 9% claimed that they were not certain, but felt that they are not like the others (Analysis of the employment of persons with disability, 2013).

On the basis of the situation regarding persons with mental and physical disability in the labour market, where 150 persons with different kinds of disabilities were interviewed, it can be deduced that the disabled persons roam the state’s labyrinths once they are supposed to enter the labour market. On the one hand, this stems from the insufficient assessment of their capabilities, and on the other hand, it is caused by the unreasonable accommodation to the work place, the lack of working assistance, but also their treat63

Analysis of the discriminatory practices in the area of employment and labor relations

INSTITUTIONAL FRAMEWORK

nstitutions of importance to the protection against discrimination on the grounds of ethnicity, gender, age, and mental and physical disability in the field of employment and labour relations, and promotion of the equality principle are as follows: the Commission for Protection against Discrimination (CPD), the Ombudsman, the State Labour Inspectorate and the legal Representative conducting procedures to establish unequal treatment of women and men.

1. Commission for Protection against Discrimination The Commission for Protection against Discrimination is an equality-related body the goal of which is to combat discrimination and to provide for the right to equality. CPD is conceptualised as an independent body pursuant to the Law on Prevention and Protection against Discrimination, with competences covering both the public and the private sector, unlike the Ombudsman. According to article 24 of this Law, the CPD has extensive competencies aimed at promoting equality and preventing discrimination, inter alia, on the grounds of disability, which can be grouped into the following four groups: provision of legal protection and assistance to the alleged victims of discrimination based on all four grounds analysed here (through the resolution 64

of individual cases and giving opinion and recommendations on concrete discrimination-related cases); enforcement of promotional, educational and advisory competencies (awareness-raising about discrimination, inter alia, based on ethnicity, gender, age, and mental and physical disability, and the protection mechanisms at disposal, giving opinions about law proposals relevant to the protection against discrimination on the grounds mentioned, giving recommendations and initiating amendments to the regulations for the implementation and promotion of the protection against discrimination); investigative, analytical and reporting competencies (gathering statistical data and forming data bases, conducting studies and surveys, reporting); and capacity building and cooperation with other bodies (cooperation with the units of the local self-government and the central authorities, provision of discrimination-related training, cooperation with the proper national bodies and other countries and with international organisations in the area of protection against discrimination, inter alia, on the grounds of ethnicity, gender, and mental and physical disability). Pursuant to the Law, every person who believes to be a victim of discrimination is entitled to a submission to the CPD, and upon determining the state of affairs the Commission will give an opinion about the alleged discrimination no longer than 90 days from the day of filing the submission, whereas it will inform both the claimant and the

person against whom the submission has been filed. If the CPD identifies discrimination, it will recommend means of erasing it. The person to whom the submission is addressed is obliged, in a period of 30 days upon receiving the submission, to act upon it and to remove any violation of the right. At the same time, the person is obliged to inform the Commission about the removal of the violation in question. And if the discriminating person does not act upon the recommendation within the period indicated, that is, fails to rectify the violation of the right, CPD may initiate legal proceedings before the relevant body to determine the person’s responsibility (Poposka, 2013, pp. 41-42). From the CPD statistics one may notice that this body received a total of 63 cases in 2011, most of which―14 or 22.22%―relate to alleged discrimination on the grounds of ethnicity, 6 or 9.52% to alleged discrimination on the grounds of mental and physical disability, 5 or 7.94% to alleged discrimination on the ground of sex, and finally, only 4 or 6.35% relate to alleged agebased discrimination. The most frequent area showing discrimination is employment and labour relations with 47.62% of the overall submissions (2011 CPD Annual Report, 2012, pp. 9-11). Moreover, in 2012 the CPD received a total of 63 cases, most of which―16 or 21.05%―relate to alleged discrimination on the grounds of ethnicity, then 8 or 10.53% to alleged discrimination on the grounds of mental and physical disability, 5 or 6.58% to alleged discrimination on the ground of sex, and finally, only 3 or 3.95% relate to alleged age-based discrimination. The most frequent area showing discrimination once again is employment and labour relations with 36.84% of the overall submissions. The CPD thereby points out that “[m]ost often the submissions about ethnicity in employment and labour relations concern legal persons, employers, state institutions and, in rare cases, natural persons, too” (2012 CPD Annual Report, 2013,

p. 19). It is also stated that “[t]he discrimination of persons with mental and physical disability is existent in all areas of social and private life, whereas it is most expressed in the area of work and labour relations. Their position can best be seen taking into consideration the high unemployment rate, the low education, poverty, the institutionalisation risk, as well as the restricted access to public facilities and services” (2012 CPD Annual Report, 2013, p. 22).

2. Ombudsman The Constitution (article 77 paragraph 2) and the Law on the Ombudsman (article 2) stipulate that: “[t]he Ombudsman shall be a body of the Republic of Macedonia that shall protect the constitutional and legal rights of citizens and all other persons when these are infringed acts, actions and omissions by the state administration bodies and by other bodies and organisations that have public authority, and who shall undertake actions and measures for protection of the principle of non-discrimination and adequate and equitable representation of community members in state administration bodies, the local-self government units, and the public institutions and agencies.” For these reasons, besides the protection of the right to work, the Ombudsman may also protect persons bearing a protection characteristics which is subject of this analysis (given ethnicity, gender, age or mental and physical disability) and protect them from discrimination on the grounds indicated in employment and labour relations in the public sector. In this respect, the Ombudsman as an independent body provides legal protection to alleged victims of discrimination based on the above mentioned grounds or on the right to work, by receiving and processing individual submissions from these groups of citizens. The Ombudsman may initiate a procedure on own initiative (ar65

Analysis of the discriminatory practices in the area of employment and labor relations ticle 13). The Ombudsman decides upon every submission and gives a legal and non-binding opinion concerning the means to rectify certain violations. On own initiative, he/she can conduct visits and insight into the bodies concerned (article 30 paragraph 1). In line with article 45 of the law and in the course of a more efficient and more successful protection of the constitutional and legal rights of citizens in the area of labour relations, the Ombudsman may establish and organise departments. For that purpose, besides the casework done in the area of labour relations, a special Department for protection against discrimination has been established, providing proper legal representation within the eponymous institution. This can be illustrated through a few statistical data from the Ombudsmanâ&#x20AC;&#x2122;s Annual Report concerning protection of the rights in labour relations, and non-discrimination, in general. Namely, in 2011 9.68% of the total number of submissions fall under the labour relations rights, 33.25% from which pertain to employment, allocation and take-in procedures, 25.97% to the procedure for payment of pays and other compensations, 11.41% pertain to the employment termination procedure, 6.55% to procedures upon complaints and objections, 5.10% to the procedure before the Employment Service Agency, 2.67% to the disciplinary procedure toward an employee, and 15.05% to the remaining. In monitoring the developments regarding the exercise of these rights, the Ombudsman detects a continuing trend of the self-initiated and unprofessional acts of employers toward workers, who suffer adverse consequences only to preserve their financial means (2011 Annual Report, 2012, pp. 33-35 and pp. 61-65). On the other hand, only 0.99% of all submissions put forward to the Ombudsman regard non-discrimination, none of which concerns multiple discrimination (Poposka, 2012, p. 294). The situation in 2012 is similar for the most 66

part. Namely, 7.04% of the total submissions pertain to the labour relations rights, whereas most of them refer to employment, determination of employment status, transformation of labour relations, and to allocation. On the other hand, only 0.74% of all submissions to the Ombudsman concern non-discrimination, none of which relates to multiple discrimination. Most submissions concern discrimination in labour relations, whereas the most frequent grounds, except for the ethnicity, are not indicated. The Ombudsman concludes that citizens ate unable to recognise the forms of discriminations and believes that more detailed surveys should be done in the future, for the purpose of establishing the cause for the occurrence in question, and undertaking measures and activities (2012 Annual Report, 2013, pp. 37-39 and pp. 61-62). Further in relevance to these grounds, the Ombudsman in 2012 conducted a survey about the exercise of the right to employment of persons with special needs, showing that â&#x20AC;&#x153;[a]lthough there is a solid framework in terms of laws and by-laws, what lack is its consistent and full implementation. These persons in the practice face stereotypes and prejudices in exercising their right to employment, whereas both employers and job seekers are ignorant of the rights, obligations and responsibilities ensuing from the labour relations. Dissatisfaction on behalf of the monitoring bodies was also detected, owing to the fact that the disabled persons are being discouraged by employers to report infringements, and the dissatisfaction also relates to the long decision-making procedures of the Commission giving opinion in case of both first-time employment and change of work position.â&#x20AC;? Among other things, this survey showed that the competent bodies lack full data about the right to work and employment of disabled persons on all grounds. Also evident is the lack of a single record of the number of able-bodied persons with disabilities, of the number of persons where their labour relation ceased according to the law, but also of

Analysis of the discriminatory practices in the area of employment and labor relations the number of cases of employment termination against the law. Also, the communication among the employer, the disabled person and the state body/institution is hampered, depending on the facial development impairments, which results in a slower and incomplete socialisation of the person with disability. There is also the need to establish an administration employing these persons (2012 Annual Report, 2013, pp. 79-81). What hinders the Ombudsman in the area of protection of the right to work and protection against discrimination, inter alia, on the grounds of ethnicity, gender, age or mental and physical disability are competences solely in the public, and not the private sector. This is especially problematic when dealing with the grounds of mental and physical disability, since disabled persons are most often employed in the sheltered facilities, which fall under the private sector, and so, it can be concluded that a large area remains uncovered by this protection mechanisms.

3. Legal representative conducting procedures to establish unequal treatment of women and men The implementation of the Law on Equal Opportunities of Women and Men, through the Unit for Promotion of Gender Equality within the Department for Equal Opportunities at the Ministry of Labour and Social Policy, has foreseen the employment of the legal representative conducting procedures to establish unequal treatment of women and men. Pursuant to the Law, the following grounds have been deemed discrimination: inter alia gender, nationality, age and disability (article 3 paragraph 6), providing for possible multiple discrimination. The

legal representative conducts a procedure upon a submission put forward and prepares a written opinion with recommendations for overcoming the situation (article 21-32). As of his appointment, the legal representative competent to conduct procedures to establish unequal treatment of women and men has received only 7 cases, whereas in 4 the Representative did not establish violation of the right on the ground of sex (Analysis of the degree of implementation of the Law on Equal Opportunities of Women and Men, 2011, p. 21). Only one case refers to alleged discrimination on the ground of sex combined with ethnicity for the claimant. The Representative did not establish discrimination in any of the cases.

4. State Labour Inspectorate The State Labour Inspectorate is a body within the Ministry of Labour and Social Policy. According to the rulebook on systematisation of the Ministry of Labour and Social Policy there are four departments covering the entire country: Department for Labour Relations, Department Security and Health in Work, Department for Normative Action for Security and Health in Work, and Department for Coordination, Training and Administrative Execution, whereas departments consist of five labour relations units. There are 99 labour inspectors allocated in 30 areas, 63 of whom are related to the area of labour relations. The State Labour Inspectorate performs control, inter alia, under the following regulations: Law on Labour Relations, Law on Labour Inspection, and Law on Employment of Persons with Disability1. In line with the competences laid down by the Law on Labour Inspection and the Law on Labour Relations, the State Labour Inspectorate performs control of the implementation of the laws and other regulations as re67

Analysis of the discriminatory practices in the area of employment and labor relations gards labour relations, employment, collective and work agreements regulating the rights, obligations and responsibilities of the worker or employer in the labour relations. This competence is realised by conducting regular supervision at the employers, control supervisions and acting upon written or oral request of persons, as well as contacting the call centre on matters regarding the protection of the labour relations rights. As an illustration, data acquired from the labour inspectors in the regional units and inspectors from the State Labour Inspectorate in 2011, a total of 31,146 supervisions were carried out, 28,748 of which were regular and 2,398 were control supervisions. In addition, the inspectors intervened upon 1,999 written requests of persons regarding the protection of their labour relations rights. Also, in 2011 a total of 1,184 reports were filed through the call centre or the website of the State Labour Inspectorate, 101 of which were from a known claimant, and 1,083 were anonymous. The requests for the protection of labour relations rights refer to the following: 308 for establishment of labour relations, 459 for termination of labour relations, 112 for working overtime, 53 for vacations and leaves, 553 for pays, contributions and compensations, 5 for redundancy, and 466 for the remaining cases (2011 Report on the work of the State Labour Inspectorate, 2012, pp. 1-6).

Analysis of the discriminatory practices in the area of employment and labor relations

CONCLUSIONS AND RECOMMENDATIONS

Conclusions •

•

The protection of the individuals with a certain mental and physical disability, ethnic origin, sex and age in the area of employment and labor relations, including the protection against discrimination on these discriminatory grounds is relatively solid. Nevertheless, the legislation contains inconsistencies because of the obvious contradictions therein, certain terms are not well adjusted and the concepts of discrimination are wrongly set out, such as the definitions and the exceptions to discrimination in the Law on Prevention and Protection against Discrimination. Moreover, the lack of sufficient case law and quasi-case law significantly hinders one’s ability to explain how these concepts (legal institutes) stipulated in the legislation should be applied.

•

There is a legal gap with regard to the protection of the women that have signed employment contracts for a definite period of time. The national policies do not provide for a uniform and strategic approach when it comes to the persons with mental and physical disability, especially with regard to the employment thereof. The principle of adequate and equitable representation continues to be implemented, but the representation is not at the required level, especially with regard to managerial posts and the smaller ethnic communities.

Ethnic discrimination is the most commonly perceived form of discrimination by the citizens. In addition, the cases reported before the Commission for Protection against Discrimination and the Ombudsman are mostly related to discrimination on grounds of ethnic origin, аnd the least on grounds of age and sex. The competent authorities do not keep separate databases about discrimination on grounds of sex, and there is lack of analyses and surveys about the presence of discrimination on this ground in the private sector. The employment of persons with mental and physical disability in shelter companies should be a transitory solution toward their full employment on the open labor market; it should not derogate from this second possibility or from the possibility to become employed in the public sector.

(Commission for Protection against Discrimination, Ombudsman, State Labor Inspectorate), maintaining databases dissagregated by disability, ethnicity, age and sex, and conducting detailed analysis of the legislation and policies followed by making necessary improvements therein. •

•

Explicit prohibition in the labor legislation as well as in the anti discrimination legislation of discriminatory announcements or statements on grounds of mental and physical disability, ethnic origin and age.

•

Provide that instructions to discriminate shall constitute a specific form of discrimination in the Labor Relations Law.

•

The legal institute of reasonable accommodation is a fairly new concept in our legal system, hence the need for precise provisions about it both in the labor legislation and in the anti discrimination legislation.

•

The exceptions to the prohibition of discrimination on grounds of age in the LPPD should be re-defined; similarly, one should reflect on the need to remove some exception(s) or introduce other exception(s) in line with the relevant EU Directive.

•

Refine the Labor Relations Law in terms of introducing provisions about protecting pregnant women that have signed an employment contract for a definite period of time, and finetuning the provision for cases when the employer knew about the pregnancy but nevertheless decided to cancel the employment contract of a pregnant worker.

Recomendations •

The availability of legislation does not achieve the desired goal by itself, which is equality of opportunities and equality of the end result for the persons with a certain mental and physical disability, ethnicity, age and sex. More specifically, in order for the legislation to produce the desired effect for these groups of citizens, it should be accompanied by additional measures such as, for example, public awareness raising activities, capacity building in the responsible institutions

Continue with the application of the principle of adequate and equitable representation, with a special emphasis on the managerial functions and the situation with the smaller communities.

•

Re-examine the criterion general health ability as one of the requirements for employment that restricts the access for the persons with disability to jobs in the civil service, the judiciary and the Bar profession, and make this criterion fully individualized in a number of laws in conformity with Article 25 of the Labor Relations Law, i.e. put this requirement in the context of the very occupation/function (post).

•

Create possibilities for re-examination of the incentives provided for in Article 4 of the Law on Employment of Persons with Disabilities by the courts on a case by case basis in order to ascertain if they are meaningful, especially since there is serious concern about possible abuses by the employers.

•

Amend the provision in Article 4-а Paragraph 5 of the Law on Employment of Persons with Disabilities which requires expert evidence (findings) and opinion from the relevant Commission under the Ministry of Labor and Social Policy about the ability of a person with mental and physical disability to carry out managerial duties because it is discriminatory and needs to be abandoned.

•

The national strategies dealing with these aspects need to be implemented in order to improve the situation with discrimination on the grounds of age and mental and physical disability in the labor field.

•

Raise the public awareness among private sector employers about the discrimination of women on the grounds of their marital status, family status, age and pregnancy status.

Analysis of the discriminatory practices in the area of employment and labor relations

APPENDIX

METHODOLOGY

lowing: review of the literature/documents, semi-structured interviews and case studies. The implementation was overseen by the Ministry of Labour and Social Policy, Commission for Protection against Discrimination, and the OSCE Mission to Skopje.

ACTIVITIES

s part of the project “Support to the further development of an effective equality infrastructure” supported by the OSCE Mission to Skopje and the project “From legislation to practice” implemented under the scope of the Progress Programme of the European Union, the Ministry of Labour and Social Policy in the period March ‒ October 2013, conducted a legal analysis of the discriminatory practices in the area of employment and labour relations on the grounds of ethnicity, age, gender, and mental and physical disability. The analysis was carried out by a team of four experts, Zaneta Poposka, PhD, Bekim Kadriu, PhD, Lenche Kocevska and Elena Kochoska. The authors were further supported by an operational team from the Ministry of Labour and Social Policy, Commission for Protection against Discrimination, and the OSCE Mission to Skopje. The methodology was aimed at providing an overview of the tools used in acquiring and processing the necessary data concerning the preparation of the analysis, the approach to drafting the analysis text, as well as the limitations of the methodology applied. As stated in the text above, the objective of the analysis was to clarify the discriminatory practices on the four bases of discrimination contained in the Law on Prevention and Protection against Discrimination (2010) in the area of employment 72

and labour relations. Thus, this determines the main subject matter of the analysis. Still, for the purpose of better comprehending the legislation, besides the domestic laws and practice, and the ratified international treaties, the analysis takes into account all relevant international treaties, the practice of the international courts and the human rights bodies, in addition to the relevant literature. Moreover, the analysis delved into the state of affairs, that is, it mirrors the discriminatory practices in this area as regards each ground separately, in order to give recommendations for its update. The preparation of the text is limited in relation to its length, owing to both the number of discriminatory grounds contained in the Law of Prevention and Protection against Discrimination analysed further in the text, and to its purpose ‒ to serve as a guideline to the state institutions concerning amendments to the legislation and updating the practice (manly of the Ministry of Labour and Social Policy, the Commission for Protection against Discrimination and the Ombudsman). The goal of the analysis is to aid the mapping of the discriminatory practices on four grounds of discrimination in the area of employment and labour relations. To this end, exploratory research was used to gather and analyse the needed data for preparing the text. For the implementation of the analysis, a methodology was used combining the fol-

a) Review of the literature / documents During the initial stage of the research, the experts, supported by the operational team of the Ministry of Labour and Social Policy and the OSCE Mission to Skopje, reviewed the available literature related to protection against discrimination in the area of employment and labour relations on the grounds of ethnicity, age, gender, and mental and physical disability. This entailed analysis of the previous experiences on the subject, as well as databases from the relevant institutions, like the Ministry of Labour and Social Policy, the Ombudsman, and the Commission for Protection against Discrimination. The existing literature and data taken into account were as follows: legal documents (domestic laws, policies directly or indirectly pertaining to the four groups of persons, international agreements and relevant travaux préparatoires); the practice of courts and bodies (domestic courts, Commission for Protection against Discrimination, Ombudsman, legal representative conducting procedures to establish unequal treatment of women and men, international courts and bodies); and academic literature (domestic and foreign papers). In preparing the review consulted were also civil organisations following the matter of protection against discrimination in employment and labour relations, and other relevant stakeholders.

b) Interviews of relevant stakeholders Having regard to the low general awareness of citizens concerning their right in general, and especially concerning discrimination, the discriminatory practices in employment and labour relations are rarely discussed, whereas the practice of reporting cases of mistreatment by individuals of different groups is quite uncommon. On the other hand, most citizens have an opinion on this issue. Therefore, in addition to the literature/document review, interviews were also conducted with the relevant stakeholders and experts regarding their perception and assessment of the legal and institutional framework, as well as the situation in practice about this exceptionally important issue. Semi-structured interviews were designed with the assistance of a guide for conducting interviews. The interviews encompassed several sectors of society, that is, interviews were conducted with key figures from: the Assembly, Government, Constitutional Court, Ombudsman, Commission for Protection against Discrimination, Legal representative conducting procedures to establish unequal treatment of women and men, in line with the needs ensuing from the legal analysis to clarify a part of the findings. Data gathered from the existing literature and those collected through semi-structured interviews were processed by means of qualitative content analysis. This approach enabled a flexible, but not very detailed general subject, which was descriptively elaborated, thus allowing both preservation of the context and the meaning of the text as seen from the authors’ perspective, and a hermeneutic analysis. The interviews with the relevant stakeholders were done in the period July ‒ August 2013.

The literature review was carried out in the period April ‒ July 2013.

Analysis of the discriminatory practices in the area of employment and labor relations

c) Case studies The case studies offer qualitative complementation of the previous two methods and allowed the implementation of a practical analysis on concrete issues or aspects. This part of the analysis saw the review of already documented cases from the media, the practices of the civil organisations, the Commission for Protection against Discrimination and the Ombudsman. Experts picked the cases to be considered. The case studies were being considered in September 2013.

d) Analysis of the data and preparation of a draft legal report Data acquired from the available documentation, the interviews conducted and other activities were analysed and included within the draft of this analysis. The primary findings and conclusions were considered at the meeting on 25 September 2013 in the function of a target group, followed by the preparation of the analysis. The analysis also contained a summary, intended for the policy-makers and general public, presenting the main findings, achievements and flaws of the legal and the institutional framework, the situation analysis on each ground separately, as well as the recommendations to make improvements.

e) Monitoring of the process of preparing the analysis During the project period four meetings were organised among the Ministry of Labour and Social Policy, Commission for Protection against Discrimination, the OSCE Mission to Skopje and the team of experts. The goal of the first meeting, held on 23 April 2013, was to check the content, methodology, and time frame, and to provide direction for some of them. The second meeting took place after the data collection on 17 July 2013 in order to present the initial find74

ings and to agree on the means of conducting interviews with the relevant stakeholder. The third meeting was held upon the implementation of all activities on 25 September 2013. The goal of this meeting was to present the findings of the analysis, to comment and discuss the conclusions, and to help formulate the recommendation. The final meeting took place on 23 October 2013 for the purpose of finalising the analysis.

Analysis of the discriminatory practices in the area of employment and labor relations

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Recommendation No. 162 (Recommendation for older workers), General ILO Conference, 80