Gender equality legislation examined
Slovenia's Law on Labour Relations, which came in force on 1 January 2003, introduced a number of new provisions on equal opportunities and equal treatment for women and men, partly in preparation for EU accession. This feature examines the main gender equality provisions of this law and looks at the evidence on its implementation, as at summer 2004.
In the process of accession, new European Union Member States have to harmonise their national legislation with the 'acquis communautaire' (the body of EU law). The harmonisation of Slovenian legislation with the acquis communautaire prior to joining the EU on 1 May 2004 contributed to a number of important legislative amendments and new provisions in the area of equality for women and men.
The main laws of relevance to workplace equality are the: Law on Parental Care and Family Cash Benefits: Law on Equal Opportunities; Law on Kindergartens; and Law on Labour Relations (LLR) (SI0206101N). The equality provisions of the latter law, which came into force on 1 January 2003, are examined below.
Law on Labour Relations
The new LLR introduced a number of new provisions regarding equal opportunities and equal treatment for women and men. This was a result of EU and international requirements, coupled with expert work and years of negotiations between the social partners (a particular commitment in this area was shown by some trade unions), and the new provisions are in accordance with various international and EU standards. The LLR prohibits discrimination based on gender and determines in detail the actions employers should take to prevent discrimination and guarantee equal opportunities for women and men in the process of recruitment, employment and termination of contract (according to A guide to my rights, a brochure from the government's Office for Equal Opportunities [Urad za enake možnosti, UEM]). The LLR seeks to protect the integrity and dignity of job-seekers and employees, provide sanctions, create the possibility of institutional monitoring and, consequently, the possibility of taking action and implementing measures against discriminatory practices in the labour market.
While the LLR contains provisions on protection for workers in relation to pregnancy and parenthood, unlike its predecessor it does not regulate maternity and childcare leave. The issue of absence from work due to maternity/paternity is now regulated by the Law on Parental Care and Family Cash Benefits.
Below we set out main equality provisions of the LLR, along with a number of implementation issues that have arisen (as at summer 2004) since it came into force at the beginning of 2003.
Article 6 of the LLR covers 'prohibition of discrimination', seeking to ensure equal opportunities and equal treatment throughout employment relationships (ie from recruitment, through employment to termination of the employment contract). Prohibition of discrimination is a basic principle that must be taken into account in dealing with all issues related to employment relationships, and in application and interpretation of the various provisions of the LLR. Article 6 represented a novelty because the previous labour legislation did not contain any such explicit provision on prohibition of discrimination. However, a ban on discrimination in the field of work resulted from a generally defined prohibition and the principle of equality as a human right laid down in Article 14 of the Constitution (SI0407101N). Article 49 of the Constitution ('freedom of work') is also important because it provides that 'everyone shall have access under equal conditions to any position of employment' and applies in concrete terms Article 14's principle of equality (see Law on Labour Relations with commentary and factual index, B Kresal, K Kresal Soltes and D Sencur Pecek, Primath, Ljubljana, 2002).
The first paragraph of Article 6 of the LLR contains a general ban on unequal treatment in the field of work by employers. The definition is wide in terms of:
- the groups protected - job applicants and employees;
- the situations covered - recruitment, the period of the employment relationship and termination of the employment contract; and
- the prohibited grounds of discrimination - sex, race, colour of skin, age, health or disability, religious, political or other conviction, membership of a trade union, national and social origin, family status, financial situation, sexual orientation or other personal circumstances.
The second paragraph refers explicitly to sex equality - the first time that Slovenian legislation has done so - stating that women and men must be provided equal opportunities and equal treatment in access to employment, promotion, training, education, retraining, wages and other income arising from employment relationship, absences from work, working conditions, working hours and notice of termination of the employment contract. In the view of experts, this list is not exhaustive and unequal opportunities and treatment in other areas are also prohibited.
The third paragraph states that any direct as well as indirect discrimination due to sex, race, age, health or disability, religious or other conviction, sexual orientation and national origin is prohibited. Indirect discrimination is defined as a situation where 'apparently neutral provisions, criteria and practice would put persons of certain sex, race, age, health or disability, religious or other conviction, sexual orientation or national origin at disadvantage, unless such provisions, criteria and practice are objectively justified, appropriate and necessary'. Some of the grounds of discrimination listed in the first paragraph are omitted here, especially the formulation 'or other personal circumstances', the inclusion of which would indicate that discrimination based on all personal circumstances is included. This inconsistency is a result of the fact that the grounds listed in Article 6(3) were taken from the relevant EU Directives that prohibit discrimination based on particular personal circumstances only.
The fourth paragraph introduces a 'reversed burden of proof', stating that if in case of a dispute the applicant or worker presents facts which justify the assumption that the prohibition of discrimination was violated due to the circumstances referred to in Article 6(3), it is up to the employer to prove that different treatment is justified by the type and nature of the work.
The fifth paragraph provides that, where the law's prohibition of discrimination is violated, the employer is liable for damages to the applicant or worker pursuant to general rules of civil law. Article 81(4) of the LLR adds that any termination of the employment contract resulting from discrimination on the grounds banned in Article 6 is invalid.
In 2003, the Labour Inspectorate (Inšpektorat Republike Slovenije za Delo, IRSD) dealt with one case of violation of the provisions of Article 6.
Other relevant provisions
The LLR applies the general prohibition of discrimination and the principle of equal treatment and opportunities, as set out in Article 6, in many of its provisions in other areas, aimed to tackle the threat of discrimination in all aspects of employment relationships. Some of the main examples are as follows.
Article 25 provides that employers may not publicly advertise a vacancy only for men or only for women, unless 'one of the sexes is the essential condition for carrying out work'. Any advertisement of a vacancy may not indicate that one of the sexes will be given priority by the employer, except where this is an essential condition for carrying out work. This regulates in more detail Article 6's ban on gender discrimination in recruitment, one of the most frequent forms of such recruitment. Any breach of this provision is, under the terms of Article 229, a relatively minor offence. So far, the IRSD has not taken any action in this field, though it has been alerted to many alleged breaches of this provision.
Article 26(2) and (3) provide that, in concluding an employment contract, the employer may not demand that applicants provide information on their family and/or marital status, pregnancy or family planning situation, or any other information unless directly related to the employment relationship. The employer may not subject the conclusion of an employment contract to the condition of providing such information, or to additional conditions related to prohibiting pregnancy or postponing maternity or to the worker signing a notice of termination of contract in advance. As commentators point out, pregnancy is a temporary situation and this is an additional reason that it cannot be considered a valid reason for the termination of an employment contract.
Article 27 provides that job applicants are not obliged to answer questions that are not directly related to the employment relationship. Applicants are thus not obliged to answer questions about the issues referred to in Article 26 (family or marital status etc - see previous point) and are guaranteed protection in the labour court, while the IRSD can impose sanctions (see below).
Article 45 prohibits sexual harassment, in that it obliges the employer 'to provide such a working environment in which none of the workers is subject to employer’s, superior’s or co-worker’s undesired treatment of sexual nature including undesired physical, verbal or nonverbal treatment or other sexually based behaviour which creates intimidating, hostile or humiliating relationships and environment at work and offends the dignity of men and women at work'. The employer is in violation of this provision if it fails to ensure such an environment and is liable for damages according to the principles of civil law. A reversed burden of proof also applies here. The IRSD has not yet confirmed any violations of this provision, but two proceedings are currently underway following complaints of alleged violations. The law provides institutional support for the prevention of sexual harassment, while judicial practices should establish the standards for resolving this problem.
Article 89 lists among the unfounded reasons for ordinary termination of an employment contract sex, age, marital status, family obligations and pregnancy. The Legal Information Centre for Nongovernmental Organisations of Slovenia (Pravno-informacijski center nevladnih organizacij Slovenije, PIC) and the IRSD have recorded cases where employers have cancelled contracts of employment for these reasons. Article 115 provides that the employer may not terminate the employment contract of a female worker during pregnancy or while she is breastfeeding, nor may the employer terminate the employment contract of parents when they are on parental leave in the form of a full absence from work.
Article 133 provides that the employer must pay equal remuneration for equal work and for work of equal value to workers regardless of their sex. Any provisions of an employment contract or collective agreement and/or employer’s actions that are contrary to this principle shall be regarded as invalid. The LLR does not specify any measures to be taken by the IRSD if this article is violated.
Article 153 prohibits night work by women in industry and construction, except in certain defined cases. This is based on International Labour Organisation (ILO) Convention No.89 on night work (women). This Convention prohibiting women's night work in industry has come under increasing criticism since the 1980s, with the main argument being that the prohibition causes discriminatory employment practices. Some countries have already derogated from the Convention, though this approach has been rejected by the Economic and Social Council of Slovenia (Ekonomsko socialni svet Slovenije, ESSS) (SI0207103F). As a result of the criticism, the ILO adopted Convention No. 171 in 1990, which provides protective measures related to night work that apply to all workers regardless of sex.
Article 188 provides that during the employment relationship, the employer may not request or seek any information on a worker’s pregnancy unless the worker concerned allows this in order to exercise her rights during pregnancy (ie rights to special protection due to pregnancy and parenthood). The IRSD has no authority here.
Articles 187-193 concern theprotection of workers due to pregnancy and parenthood and oblige employers to facilitate the reconciliation of work and family responsibilities. These provisions are seen as very important for equality between women and men because they are based on the assumption that both parents have family obligations (the provisions include the protection of parenthood in relation to night and overtime work). The LLR obliges employers to guarantee the right to parental leave to both parents, which is regarded as an important shift towards implementing the principle of enabling the reconciliation of different roles. A breast-feeding mother has the right to a daily break of at least one hour for breast-feeding during working time (there have been eight reported cases of violations of this provisions so far). All workers who have children aged up to 15 have the right to one additional day of annual leave. If these provisions are violated, workers may seek several forms of institutional protection. If the worker is refused the additional day of leave, the IRSD may force the employer to implement the law by issuing an order or referring the case to a magistrate.
Sanctions and supervision
The LLR provides for several types of sanctions in the event of violation of the provisions outlined above:
- it enables the worker to cancel the employment contract in certain circumstances, while retaining the right to severance pay and compensation (Article 112);
- it provides judicial protection to unsuccessful job applicants if they believe that they have been the victims of discrimination (Article 204); and
- fines may be levied of not less than SIT 1 million for an employer that is a legal entity and not less than SIT 500,000 for an employer that is a natural person, and of SIT 80,000 for the person accountable as the employer (Articles 229, 230 and 231).
Supervision of the execution of the LLR is exercised by the Labour Inspectorate (IRSD). In cases of violation of the law's prohibition of discrimination, the IRSD can refer a case to courts that deal with minor offences together with a proposal to launch a legal procedure.
The processes of economic and social transformation in Slovenia have tended to undermine the foundations of gender equality. This is why the mechanisms included in the LLR, supported by control and protection measures, are an important step in ensuring gender equality.
The LLR, like many other laws, faces an 'implementation gap'. There is a degree of anecdotal evidence of various cases of violation of the LLR.
The role of the Legal Information Centre for Nongovernmental Organisations of Slovenia (PIC) should be reviewed as part of a process of eliminating systemic shortcomings. PIC could contribute more to promoting and implementing the LLR's provisions if it enjoyed appropriate institutional as well as continuous and stable financial support.
The Union of Free Trade Unions of Slovenia (Zveza svobodnih sindikatov Slovenije, ZSSS) has recently highlighted the issue of indirect discrimination against women. The ZSSS board for equal opportunities has prepared an action programme for the promotion of equal opportunities for women and men. It has also prepared a draft clause for inclusion in collective agreements, intended to help victims of all kinds of discrimination, intimidation and sexual harassment. (Jana Javornik and Stefan Skledar, Institute of Macroeconomic Analysis and Development)