Discrimination Practices in Employment

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

4

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

Editor in chief: Zaneta Poposka, PhD

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

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

Summary ........................................................................................................................9Introduction ..................................................................................................................11

I. Subject of analysis ...............................................................................................12

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

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

1. Ethnicity ..................................................................................................................20

1.1. International legal standards .................................................................................201.1.1. United Nations Convention on Elimination of all forms of Racial Discrimination .............................................................................................................201.1.2. ЕCHR and Protocol 12 to the Convention .........................................................211.1.3. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ..............................22

1.2. National legal framework .....................................................................................241.2.1. Constitutional provisions ...................................................................................241.2.2. Law on Labor Relations .....................................................................................241.2.3. Law on Prevention and Protection Against Discrimination ..............................25

1.3. National policies ...................................................................................................251.3.1. National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental and physical disability and sex for 2012-2015 ...................261.3.2. National strategy on equitable representation ....................................................26

1.4. Situation analysis ..................................................................................................261.4.1. Perception of ethnic discrimination ..................................................................26

5

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

1.4.2. Reported cases of ethnic discrimination ............................................................271.4.3. Principle of equitable representation .................................................................28

2. Age ..........................................................................................................................30

2.1. International legal standards .................................................................................302.1.1. International Covenant on Economic, Social and Cultural Rights ....................302.1.2. ILO Conventions on Prohibition of Discrimination in Employment and Occupation ...........................................................................................................312.1.3. ЕCHR, Protocol 12 to the ECHR and the European Social Charter .................322.1.4. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation ....................................................33

2.2. National legal framework ...................................................................................342.2.1. Constitutional provisions ..................................................................................342.2.2. Law on Labor Relations .....................................................................................342.2.3. Law on Prevention and Protection against Discrimination ...............................35

2.3. National policies ................................................................................................352.3.1. National strategy on elderly people for 2010-2020 ...........................................352.3.2. National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental and physical disability and sex for 2012-2015 .....................362.3.3. National strategy on reducing poverty and social exclusion for 2010-2020 .....362.3.4. National employment strategy 2015 ..................................................................36

2.4. Situation analysis .................................................................................................372.4.1. Forms of discriminatory practices on the grounds of age .................................372.4.2. Perception of discrimination on the grounds of age ..........................................392.4.3. Reported cases of discrimination on the grounds of age ...................................39

3. Sex ...........................................................................................................................40

3.1. International legal standards .............................................................................403.1.1 UN Convention on the Elimination of All Forms of Discrimination against Women ...........................................................................................................403.1.2 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

3.2. National legal framework .....................................................................................43

3.2.1 Constitutional provisions ....................................................................................433.2.2 Law on Labor Relations .....................................................................................433.2.3 Law on Equal Opportunities for Women and Men ............................................443.2.4 Law on Prevention and Protection against Discrimination .................................45

3.3. National policies ...................................................................................................453.3.1 National strategy on gender equality for 2013-2020 ..........................................453.3.2 National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental/physical disability and sex for 2012-2015 ...........................463.3.3 National strategy on reduction of poverty and social exclusion in the Republic of Macedonia for 2010-2020 .............................................................463.3.4 National employment strategy 2015 ...................................................................47

3.4. Situation analysis ..................................................................................................483.4.1. Perception of discrimination on the grounds of sex ...........................................483.4.2. Reported cases of discrimination on the grounds of sex ....................................48

4. Mental and physical disability ..............................................................................50

4.1. International legal standards .................................................................................504.1.1 UN Convention on the Rights of Persons with Disabilities ................................514.1.2 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation .....................................................52

4.2. National legal framework ....................................................................................534.2.1 Constitutional provisions ....................................................................................534.2.2 Law on Labor Relations ......................................................................................544.2.3 Law on Employment of Persons with Disability ...............................................554.2.4 Law on Prevention and Protection against Discrimination ................................57

4.3. National policies ...................................................................................................584.3.1 National strategy on equal rights of persons with disabilities for 2010-2018 ....584.3.2 National strategy on equality and non-discrimination on the grounds of ethnicity, age, mental/physical disability and sex for 2012-2015 ..........................584.3.3 National strategy on reduction of poverty and social exclusion for 2010-2020 ...................................................................................594.3.4 National employment strategy 2015 ...................................................................59

6 7


The drafting of the Analysis of the discriminatory practices in the area of employment and la-bor relations on the grounds of ethnicity, age, sex and mental

and physical disability stems from the Nation-al 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 anal-ysis was completed in the period March-Octo-ber 2013 by a group of four authors: Ms Zane-ta 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 prac-tice” implemented under the scope of the Prog-ress Programme of the European Union.

The challenge for this legal analysis was to depict the situation with discriminatory practic-es in the area of employment and labor relations regarding the abovementioned four discrimina-tory grounds, both from the aspect of the leg-islation 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 chal-lenges.

The justification for this legal analysis lies in the need to provide a clear picture of the legisla-tion, policies and practices in the area of employ-ment and labor relations with regard to discrim-ination 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 com-bination of a desk review, semi-structured inter-views and case studies. The implementation was overseen by the Ministry of Labor and Social Policy, Commission for Protection against Di-sacrimination 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 pro-hibition of discrimination. Moreover, the lack of sufficient case law and quasi-case law in Mace-donia significantly hinders one’s ability to ex-plain 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

SUMMARY

8

4.4. Situation analysis ..................................................................................................604.4.1. Perception of discrimination on the grounds of mental and physical disability .......................................................................................................604.4.2. Reported cases of discrimination on the grounds of mental and physical disability ..................................................................................................61

IV. Institutional framework ......................................................................................641. Commission for Protection against Discrimination .................................................642. Ombudsman .............................................................................................................653. Legal representative conducting procedures to establish unequal treatment of women and men ........................................................................674. State Labor Inspectorate ..........................................................................................67

V. Conclusions and recommendations ......................................................................70

ANNEX 1 – METHODOLOGY ...............................................................................72

REFERENCES ...........................................................................................................76

9


the persons with mental and physical disability, especially with regard to the employment there-of.

3) The principle of adequate and equitable representation continues to be implemented, but the representation is not at the required level, es-pecially with regard to managerial posts and the smaller ethnic communities.

4) Ethnic discrimination is the most com-monly 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 sep-arate 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 disabili-ties 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 fol-lowing 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 pro-duce the desired effect for these groups of cit-izens, it should be accompanied by additional measures such as, for example, public aware-ness raising activities, capacity building in the responsible institutions, maintaining databases, and conducting detailed analysis of the legisla-tion and policies followed by making necessary improvements therein.

2) Improve the legislation in terms of the following: explicit prohibition of discriminato-

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; en-act provisions to protect pregnant women who have signed an employment contract for a defi-nite period of time; and re-examine the criterion general healt ability as one of the requirements for employment that restricts the access for per-sons 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 Disabil-ities 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 Com-mission 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 prin-ciple of adequate and equitable representation, with a special emphasis on the managerial func-tions and the situation with the smaller commu-nities.

5) The national strategies dealing with these aspects need to be implemented in order to im-prove the situation with discrimination, especial-ly 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

The 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 accept-ed 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 digni-ty. 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 acces-sible 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 ab-solute and unconditional right to employment. Namely, it includes the right for every human being, including persons with a particular men-tal 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, ac-ceptability 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 guar-antee 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.

10 11


13

The principle of equality is the ba-sic principle in the human rights context; it is based on the equal value and dignity of all human beings. This principle is em-

bedded 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 Nico-machea, 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 ap-plication 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 per-sons with disability (with regard to the ground

disability). Therefore, substantive equality is an indicator that points to the possible incon-sistencies in the application of the formal, i.e. legal equality. The goal of any democratic soci-ety 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 multidisci-plinary individual and group identities which are conducive to an increased vulnerability of the protected individual and/or groups, vulnera-bility that is due to the interdependence between these identities and some complex structural so-cial factors (Arnardóttir, 2009).

Conceptually, equality and prohibition of dis-crimination 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 prohibi-tion 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 empha-sizing the goal of the anti discrimination leg-islation - not only equality of opportunities but equality of the end result as well.

12

In modern life, discrimination is a concept without fixed and cut-and–dried boundar-ies 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 informal-ly 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 dis-crimination 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, discrimina-tio, which means making a difference, differ-entiation, classification. These differentiations are usually based on existing stereotypes and prejudices about a particular protected group. However, not every differentiation is discrim-ination. Discrimination is only the differentia-tion 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 legis-lation is determined by the following two ele-ments: (i) the formulation of the discriminatory grounds; and (ii) the protection of each of the individual grounds, which depends on the justi-fication and the exceptions allowed by the leg-islation for each of the grounds (Schiek, Wad-dington, 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 discriminato-ry 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 ad-dressed 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 internation-al 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-ex-planatory. 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 sub-mitted 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 impor-tance because it is associated with the defining of the protected group. When talking about the protected group it should be noted that the defi-nition ought to prohibit discrimination on the ground of a protected characteristic (in our case ethnicity, sex, age or mental and physical dis-ability) rather than to protect the persons with that particular characteristic. This would open the room for protecting the persons that are as-sumed to have the particular characteristic1 as well as the persons that are closely connected with the person featuring a protected charac-

I SUBJECT OF ANALYSIS


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 pro-tection of the persons that are closely connect-ed with a disabled person and that can be dis-criminated 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 legis-lations, 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 of-ten encompass several protected characteris-tics; it can be easily assumed that unequal treat-ment can occur simultaneously on a number of grounds. These are cases of multiple discrim-ination, i.e. discrimination on more than one ground, which is not the sum of two discrim-inatory grounds, but what matters here is the very end result which is quantitatively different, i.e. synergetic. As a result, due to this syner-getic trait of the multiple discrimination, it is very difficult to expect any emerging of specific policies and legal solutions for this phenome-non. 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 discriminato-ry 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 multi-ple 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 sin-gle problem. It is exactly here where the par-adox 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 protec-tion against this type of discrimination.

Discrimination can appear in a number of forms, but it usually appears as direct or indi-rect discrimination, regardless of whether this is stipulated in the law or determined by the case law. Harassement and instruction to dis-criminate 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 ex-tremely 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 pos-sibility 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

and levels of work. Standards require that dis-crimination be prohibited with regard to: the conditions for accessing a certain job, self-em-ployment or occupation, including the criteria for selection of candidates for employment; car-rier 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’ or-ganizations or other professional organizations, as well as regarding the benefits from the mem-bership. The same principle applies to the pro-hibition 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/reason-able. Furthermore, the prohibition of discrim-inatory announcements or statements on a dis-criminatory 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 employ-ment and labor, based on the four grounds of discrimination that are specified in the Law on Prevention and Protection against Discrimina-tion. This constitutes the main thematic focus of the analysis.

14 15

(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, Nether-lands (only for disability, Malta (only for disability), Slovakia (only for disability).


1716

As far as the national legislation is concerned, over the past several years the State has devel-oped an anti discrimination legal framework that can be considered as a relatively solid founda-tion 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, politi-cal and religious belief and property and social status. The citizens are equal before the Consti-tution and the laws” (Constitution, 1991, article 9). However, this provision has been widely crit-icized because it uses the word citizens, which leaves the impression that aliens (persons without citizenship and those with a foreign country citi-zenship) 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 de-clared itself incompetent in almost all the cases

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 Constitu-tional 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 enact-ment 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-dis-crimination, and to provide for a more readily available legal protection for all the persons that would appear as alleged victims of discrimina-tion. In addition to the mentioned discriminatory grounds such as sex, race, color of skin, gender, affiliation of a marginalized group, ethnic or-igin, language, citizenship, social origin, reli-gious 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 pro-vides in its article 3 for an open list of grounds with the phrase “or any other ground”.

The LPPD prohibits all forms of discrimina-tion, including direct and indirect discrimination (article 6), harassment (article 7), instruction to discriminate (article 9), and victimization (arti-cle 10), committed by natural and legal persons both in the public and private sectors, in the areas of employment and labor, education, ac-cess to goods and services, housing, health care, social protection, administration, judiciary, sci-ence, 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 dis-ability. This should be changed and harmonized with the international anti discrimination stan-dards in the future. In addition, article 12 of the LPPD views multiple discrimination as a more severe form of discrimination, i.e. discrimina-tion against a certain person on several discrimi-natory grounds occurring at the same time. This is of exceptional importance because every hu-man 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 con-troversial and its full harmonization with the EU legislation is still a debatable issue (2011 Prog-ress report, pp. 55 and 63).

Direct discrimination on some discriminatory ground is prohibited in accordance with arti-cle 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 dis-crimination.

Regarding the existence of a general justi-fication for direct discrimination, it should be mentioned that the LPPD does not provide for it. On the other hand, the anti discrimination leg-islation contains a large number of general ex-ceptions 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 encour-age employment (article 15 paragraph 1 point 2); when laying down a genuine and determining re-quirement 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 disabili-ties in terms of receiving training and education, with a view to satisfying their special education-al needs in order to create equal opportunities (article 15 paragraph 1 point 3); and when pro-viding 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 arti-cle 6 paragraph 2 of the Law. It occurs when a seemingly neutral provision, criterion or prac-tice places, inter alia, a person with a particu-lar 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 compli-ance 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

II THE LAW ON PREVENTION AND PROTECTION AGAINST DISCRIMINATION

(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.


1918

of indirect discrimination depending on the ex-istence 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 explicit-ly 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 pro-hibited 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 per-sons. 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 intimidat-ing environment, approach or practice. Harass-ment is defined more broadly so as to encompass violation of the dignity not only of an individ-ual 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 vic-tim 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 harass-ment at work (mobbing) can be one or more individuals in the capacity of an employer who can appear as a natural person, a responsible per-son 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

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 pro-hibited 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 dis-criminate 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 accommoda-tion). Namely, the LPPD stipulates that “adjust-ing the infrastructure and the services means to undertake adequate measures that are necessary in a case in order to enable the person with men-tal 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 infrastruc-ture and services. Furthermore, the LPPD does not define the term “adequate measures” for the persons with mental and physical disability; in-stead, 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 sta-tus 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

2 and is fully in line with the Convention on the Rights of the Persons with Disability is that the unjustified absence of reasonable accommo-dation 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 men-tioned 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 pro-cedure 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 (pursu-ant 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 pro-tection 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 frame-work, Heading 1: Commission for Protection against Discrimination.


2120

DISCRIMINATION IN THE FIELD OF EMPLOYMENT AND LABOR

Discrimination on the ground of ethnicity oc-curs 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 commu-nity or group. If this is transposed into the realm of labor relations, it means that ethnic discrimi-nation 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 em-ployment just because of his/her ethnicity.

A number of indicators show that discrim-ination on the ground of ethnic origin is quite present in the Republic of Macedonia. This con-clusion can be derived from: the perception of the citizens (Petrovskа Beska, Najcevska, 2009, p.13; Krzalovski, 2011, p. 10); the reported cas-es 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; Com-mission for protection against discrimination, Annual report for 2011 and 2012); and from the reports prepared by well known international or-ganizations (ЕC, Progress report for Macedonia for 2012, p.18).

Of special importance for the Republic of Macedonia is the constitutional principle of ade-quate 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-ma-

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 internation-al community embraced the need for adopting a special instrument for protection against dis-crimination on the ground of ethnic origin (as part of the definition of “race“). To this end, the Convention on Elimination of all forms of Ra-cial Discrimination (CERD) was adopted. This Convention refers to discrimination on grounds of race, but the definition of race includes ex-plicitly the ethnic origin as a discriminatory ground (CERD, article 1).

1.1.1. United Nations Con-vention on Elimination of all forms of Racial Discrimina-tion

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 ap-plies to economic and social rights such as the right to work, free choice of work, conditions for work, protection against unemployment, equal

Ethnicity1

pay, the right to establish and be a member of trade unions, etc. (CERD, article 5.е.)

The starting point for CERD in defining dis-crimination were the definitions in the Conven-tions 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 pref-erence based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoy-ment or exercise, on an equal footing, of human rights and fundamental freedoms“ (CERD, arti-cle 1.1.).

According to CERD, whether a person be-longs 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 Discrimi-nation, General Comment VIII, 1990). The State may not even determine which groups are ethnic ones, and as result of that to enjoy protection ac-cording to the Convention. This is done on the basis of objective criteria and does not depend on the will and recognition by the State. Accord-ing 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 ap-plication 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 ac-tions, 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 rep-resentation of the members of all communities.

However, the basic characteristic of the spe-cial 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 tanta-mount 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 need-ed 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 le-gal framework should be the benchmark for the Republic of Macedonia when applying the prin-ciple of adequate and equitable representation.

As it was mentioned, the concept of discrim-ination 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 import-ant because of the fact that workers are often dis-criminated against by private employers in the Republic of Macedonia.

1.1.2. ILO Convention con-cerning 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 voca-tional training and advanced training necessary for acquiring specific professional qualifications, access to employment and to particular occupa-tions, and terms and conditions of employment

III


22

(Convention 111 of the ILO, article 1 paragraph 3).

Even though ethnicity is not explicitly men-tioned, we consider it to be part of the ground “race“ bearing in mind the definition of this concept in the international human rights instru-ments.

1.1.3. ЕCHR and Protocol 12 to the Convention and the European Social Char-ter

These three international agreements were ad-opted 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 pro-vided 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 in-terpreted that ethnicity is covered by the concept of “race“. The important characteristic of Pro-tocol 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 im-portant thing for our study is that this protocol also applies to the rights stemming from employ-ment. 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 scarci-ty of case law of the European Court of Human Rights in this field. However, this is something

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 con-ditions 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 en-sure 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 treat-ment between persons irre-spective of racial or ethnic origin

Article 13 of the Amsterdam Treaty provides that EU institutions have a direct competence to adopt protective measures against discrim-ination on grounds of sex, racial or ethnic ori-gin, 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 Direc-tive is to regulate in a direct manner the issues around the prohibition of discriminatory behav-iors 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 Direc-tives 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 indi-rect 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

similar situation, in comparison with whom the applicant was treated less favorably. Direct dis-crimination on grounds of race or ethnic origin may not be justified under any circumstances, except in the cases of the genuine and determin-ing occupational requirements (article 4) or for the purpose of taking positive action (article 5).

The Directive also prohibits the indirect dis-crimination. 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 demon-strate 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 justi-fied 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 discrim-ination, harassment, instruction to discriminate and victimization in the EU Directives, in-cluding in this particular Directive, should be a benchmark for the exercise of defining these concepts in our legislation. The legal inconsis-tencies that exist in our legislation should be re-solved 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 de-termined in its article 3. The Directive applies to labor relations, including conditions for access to employment and to self-employment, selec-tion criteria, promotion, access to all levels of vocational training, advanced vocational train-

ing and re-training including practical work ex-perience, 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, hous-ing), 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 differ-ence in the treatment on the ground of racial or ethnic origin is allowed only if it constitutes a genuine and determining requirement for a cer-tain job (these are exceptional cases, like for ex-ample actor who plays a certain figure).

Article 5 provides for positive action, which means that one follows here the stance accept-ed 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 un-favorable 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 im-portant for the Republic of Macedonia to justify the measures undertaken with a view to imple-menting the principle of adequate and equitable representation.

The Directive also provides for a special pro-tective 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 per-sons who think that they are victims of discrim-ination. In the event where the alleged victim submits evidence and thus renders the existence of an unfavorable treatment probable, the bur-

23

(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 Hece-govina, 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=&D-F=&CL=ENG.


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 commit-ted 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 inde-pendent reports about aspects related to discrim-ination as envisaged in this Directive (Directive 2000/43/ЕС, article 13). This article of the Di-rective has been fully implemented in the Re-public 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 Di-rective in the labor arena. For example, in the case Firma Feryn, the Court found direct dis-crimination in the case where the employer pub-licly 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

FRAMEWORKMembers of several ethnic communities live

in the Republic of Macedonia. The issue of eth-nic 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 pro-ceeded 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 discrim-ination provisions in the Labor Relations Law.

1.2.1. Constitutional provi-sions

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 men-tions race and national origin thus we consider ethnic origin included as a protected ground. We are however of the opinion that this “anti dis-crimination 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 bod-ies 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 Rela-tions

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 indi-rect discrimination (article 7), definition of ha-rassment (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 pro-vides that “the employer must not place the ap-plicant for a job or the worker in an unequal po-sition 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 ex-ceptions, the Labor Relations Law provides only for the “genuine and determining requirement

for employment” (article 8 paragraph 1) as a possible exception to the prohibition of discrim-ination. 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 Dis-crimination

The LPPD explicitly mentions the ethnic ori-gin as a separate discriminatory ground in article 3. In addition, the LPPD prohibits discrimina-tion in all the areas specified by the Directive 2000/43/ЕС.

It needs to be highlighted that the LPPD pro-vides for exceptions with regard to the ethnic origin ground of discrimination. The following should be mentioned here: the genuine and deter-mining requirement for employment (article 14 paragraph 1 point 2); the special measures aim-ing 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 pro-tecting the identity of the ethnic minorities (arti-cle 15 paragraph 1 point 8). It is on the basis of these provisions that the measures for adequate and equitable representation аpplied in the Re-public of Macedonia can be justified.

1.2.4. Legislation for implementing the princi-ple 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 adop-tion 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 consti-tutional principle of adequate and equitable rep-resentation 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 specif-ically 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 com-bined with some objective criteria for employ-ment (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, an-other 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 ad-ministration, 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 an-swers, 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 pur-sued, and they must not be converted into un-necessary 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 Mace-

donia, together with the responsible ministries, has adopted national strategies that have direct

24 25


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-dis-crimination on the grounds of ethnic origin, age, men-tal 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 frame-work on non-discrimination have a bearing, in-ter 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 discrimi-nation 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 princi-ple 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 ANALYSISThis 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 report-ed cases of discrimination (the ratio). For better visibility, this section will be divided into: (i) perception about the existence of ethnic discrim-ination, (ii) cases reported before the relevant in-stitutions, and (iii) application of the principle of adequate and equitable representation.

1.4.1. Perception about eth-nic discrimination

There is perception among the citizens that ethnic discrimination is one of the most com-mon 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 phenom-enon in the Republic of Macedonia. Namely, 55% of the respondents answered that discrim-ination on the ground of ethnic background was a frequent phenomenon (Petrovska Beska, Na-jcevska, 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 discrimina-tion is a frequent phenomenon in Macedonia, whereas this percentage for the ethnic Macedo-nians 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 clear-ly shows that discrimination in the labor rela-tions area does exist, especially with regard to

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 em-ployment in the public or private sector.

It is important to note that 47.5% of the Alba-nian respondents think that the ethnic origin is a ground of discrimination in employment, where-as 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 seg-ment 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 Mace-donia.

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 discrimina-tion whereas 23.4% witnessed ethnic discrimi-nation. 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 Of-fice and the Commission for Protection against

Discrimination. The situation with the Ombuds-man’s Office for the past 4 years has been such that a total of 110 complaints for alleged dis-crimination 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 com-plaints 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 ori-gin. 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 com-plaints, 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; Ombuds-man’s Office, Annual Report for 2012, pp. 37-38).

As far as the Commission for Protection against Discrimination is concerned, the com-plaints 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, An-nual Report for 2011, p. 9). The total number of complaints in 2012 rose up to 75, the largest

26 27

(7) Discrimination on the ground of political affiliation ranks first according to the perception, with 78% of the re-spondents 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.


group among which (16) was related to alleged discrimination on the ground of ethnic origin. Among those, only 2 are related to alleged eth-nic discrimination in the labor area. As of Au-gust 2013, a total of 58 complaints have been submitted to the CPD, out of which the largest group of complaints (16) related to discrimina-tion 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 re-lations 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 discrim-ination 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-major-ity communities in the Republic of Macedonia was confirmed as well. This can be concluded on the basis of the ethnic background of the ap-plicants 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 communi-ties (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 constitu-tional order of the Republic of Macedonia, ex-plicitly mentioned in the Amendment VI to the Constitution of the Republic of Macedonia. Af-ter following the situation with the adequate and

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 representa-tion, but the statement that the majority of the institutions have not achieved the compulsory level of representation yet remains valid (Om-budsman’s Office, Annual Report for 2012, р. 44).

From a statistical point of view, 2012 marked a mild increase in the total number of em-ployed members of the Albanian (from 17.2% to 17.8%) and Turkish (from 1.7% to 2.0%) com-munities. The numbers for the other non-major-ity communities remain at the same level as in 2011, whereas a mild decrease in the total num-ber 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 ade-quate and equitable representation is better im-plemented by the state administration bodies than by the public enterprises (Ombudsman’s Office, Annual Report for 2012, р. 40). The

Ombudsman submits that it is necessary to take “additional measures for implementation of the principle of adequate and equitable representa-tion for the members of the less numerous com-munities” (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 re-port for 2012, р. 17).

Regarding the adequate and equitable repre-sentation with regard to managerial posts, there was an insignificant decrease in the ethnic Mace-donian campus and a mild increase in the number of managerial positions for members of the Al-banian 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 health-care institutions, the fund entities, and the inde-pendent state authorities (Ombudsman’s Office, Annual Report for 2012, р. 40).

The Secretariat for the Implementation of the Ohrid Framework Agreement undertakes mea-sures for implementation and monitoring of the principle of adequate and equitable representa-tion of the members of the communities. The Secretariat has developed a program for em-ployment 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 adminis-tration authorities as well as the data obtained from the public enterprises about the represen-tation 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 Representa-tion as well as the recommendations in the Stra-tegic 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 competi-tions for employing members of the non-majori-ty communities in the country were launched, as a result of which 543 members of the non-major-ity communities were employed (361 with com-pleted 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 indi-viduals with higher education and 40 individuals with secondary education degrees (Ombuds-man’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-majori-ty communities such as vocational training and quotas for employment. The percentage of sup-port 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 sur-vey 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%).

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).

28 29


Age2Discrimination on the ground of age is a new

form of discrimination, which is very slow-ly 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 Repub-lic of Macedonia, Decision No. 118/2003-0-0, 16 July 2003). Due to such prejudices, discrimi-nation 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 re-ported 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 STANDARDSFrom 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 Interna-tional Covenant on Economic, Social and Cul-tural Rights (ICESCR), the ILO Convention on Discrimination in Employment and Occupation, (Convention 111 of the ILO), the European Con-vention 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 Cove-nant on Economic, Social and Cultural Rights

The ICESCR contains an anti-discrimination clause in its article 2. This clause has an acces-sory nature and relates to protection against age discrimination only with regard to the rights stip-ulated in the ICESCR. An important fact for our survey is that the rights arising from employment are stipulated in the Covenant, thus the anti-dis-crimination clause relates to these rights as well. More specifically, the Covenant stipulates the right to work (article 6), the right to the enjoy-ment 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 sta-tus” (CESCR, General Comment No. 20, para-graph 29). This can be the only valid conclusion if account is taken of the open list of discrimi-natory grounds in the anti-discrimination clause.

The Committee agrees that the anti discrim-ination 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 dis-crimination on the ground of age. Therefore, the

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 omis-sions and their effects“ (CESCR,General Com-ment No. 20, paragraph 13).

The basic duty for the States that have rat-ified the ICESCR in this regard is to prevent discrimination on grounds of age in the enjoy-ment of the rights, including the rights arising from employment. This stems from the General Comment No. 6 which relates to elderly per-sons over 60 years and to their economic, social and cultural rights (CESCR, General Comment No. 6).10 This means that there is an explicit ob-ligation, which by the way is rare in the interna-tional contract law, to prevent discrimination on grounds of age in the labor relations area, espe-cially 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 orga-nizations of workers (CESCR, General Com-ment No. 6, paragraphs 23 and 25). Equal con-ditions for work means that all the rights from employment must be accessible and enjoyable equally for all regardless of the age of the work-er. 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, para-graph 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-deter-mined age.

2.1.2. ILO Conventions on Prohibition of Discrimina-tion in Employment and Occupation

The International Labor Organization (ILO) has adopted a specific convention related to pro-tection and discrimination in the labor field. This is the Convention 111 which prohibits discrimi-nation in the labor area, and provides for access to vocational training and advanced training nec-essary for acquiring specific professional quali-fications, 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 discrimi-natory ground. Only race, color [of skin], sex, re-ligion, 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 ad-opted on its general conference in 1980 the Older Workers Recommendation. With this in-strument 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 occupa-tion with regard to older workers“ (ILO, Older Workers Recommendation, 1980, paragraph 3).

30 31

(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.

(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 Inter-national 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.


Older workers should enjoy equality of opportu-nity 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 val-ue; social security measures and welfare bene-fits; 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 satis-factory conditions, with the participation of the representative organizations of employers and workers. The Recommendation insists on stud-ies 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 (para-graph12). Moreover, the Recommendation re-quires 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 ade-quate financial compensation in case of unem-ployment (paragraph 18). It is also recommend-ed that special measures be taken with a view to ensuring a gradual transition from working life to freedom of activity, and making the age quali-fying for an old-age pension flexible. On the oth-er 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

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 old-er 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 interna-tional “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-discrimina-tion clause in its article 14. Age is not explicitly mentioned in this clause, but bearing in mind the open list of discriminatory grounds the Europe-an Court of Human Rights interprets this provi-sion as if it included age among the grounds as well (ECHR, Stec and others v. the United King-dom). 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 explic-itly mentioned as a discriminatory ground but the explanatory report claims that age is consid-ered 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 Re-public of Macedonia has ratified Protocol 12 to the ECHR.

The revised European Social Charter stipu-lates the rights arising from employment includ-ing 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 in-strument is significant for the Republic of Mace-donia for the fact that the country ratified it in 2012, which was also the year of its entry into force.

2.1.4. Council Direc-tive 2000/78/ЕС establish-ing a general framework for equal treatment in employ-ment 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 ad-opted, 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 dif-ferent 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 discrimina-tion on the ground of age (and on the other three

grounds) outside of the labor realm.11

The Directive, as it was mentioned above, ex-plicitly mentions age as a ground. However, the substantive scope of the Directive is too narrow. It relates only to the labor relations in the pub-lic 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 em-ployment, 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 securi-ty 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), harass-ment (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 direc-tive 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 pub-lic security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the

32 33

(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.


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. How-ever, 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).

2.2. NATIONAL LEGAL

FRAMEWORKThe Republic of Macedonia has an adequate

legal framework for protection against discrim-ination on grounds of age. The framework was made complete with the enactment of the Law on Prevention and Protection against Discrimi-nation. The national legal framework, despite all of its inconsistencies and terminological discrep-ancies, still constitutes a good basis for efficient protection against discrimination on the ground of age in the labor relations field.

2.2.1 Constitutional provi-sions

The principle of equality in the Republic of Macedonia is reflected in article 9 of the Mace-donian Constitution. Although this constitution-al provision safeguarding equality does not spe-

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 spe-cifically 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 Mace-donia’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 dilem-mas regarding this issue.

2.2.2 Labor Relations Law 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, termina-tion 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 Re-lations 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, para-graph 1, point 1) and measures for special pro-

tection of elderly workers (article 8, paragraph 1, point 2). Any other distinction on ground of age shall be considered as discriminatory in la-bor relations.

LPPD stipulates other forms for justifying dis-tinctions 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 privileg-es related to employment, if the latter is objec-tively 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 max-imum 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 Dis-crimination

LPPD specifically lists the age as discrimina-tory 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 im-plementation 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 oc-cupation.

Тhe problematic thing about LPPD as a gen-eral 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 incorpo-rate general possibility for justification of dis-tinctions made in relation to the grounds enu-merated 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 substan-tive laws containing anti-discriminatory provi-sions, as certain confusion is created. More spe-cifically, 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 Protec-tion of Rights of Patients, Law on Social Pro-tection and Law on Public Health. Moreover, definitions of discrimination must be harmo-nized with international standards, including exceptions to discrimination although not direct-ly related to age discrimination but the effects thereon can be felt.

2.3. NATIONAL POLICIESIn accordance with positive legislation, the in-

stitutions in charge adopted a number of nation-al 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 2010-2020

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 Strate-

34 35

(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.


gy underlines the need to include elderly people in the labor market. This is perceived as a mea-sure 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 Strat-egy 2010, the National Employment Action Plan 2009-2010 (NEAP), Оperational Plan of the Government for active programs and em-ployment measures for 2009, the Strategy for Demographic Development of the Republic of Macedonia 2008-2015 as well as the Multi-an-nual Operation Program for Human Resource Development 2007-2013” (National Strategy on Elderly People, 2010, p. 25). For illustration sake, in 2009 the measure “Subsidizing employ-ment of the elderly” covered 576 persons of the planned 629 persons. (National Strategy on El-derly People, 2010, p. 26).

2.3.2 National Strategy for Equality and Non-Discrim-ination 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 dis-crimination. The strategy is adopted by the Gov-ernment of the Republic of Macedonia for the 2012-2015 period.

In terms of age, general and specific strate-gic goals are planned, starting from training, strengthening of the institutional capacity, im-plementing research, leading up to creation of employment conditions for all age groups at the open labor market (National Strategy for Equal-ity and Non-discrimination, p. 24).

2.3.3 National Strategy for Reducing Poverty and So-cial Exclusion in the Repub-lic of Macedonia for 2010-2020

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 “in-crease of employment, as a concept which en-ables creation of better conditions for effective and efficient involvement of the citizens” (Na-tional Strategy for Poverty Reduction, р. 3).

The age group in special focus is young peo-ple, 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 in-formation 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 employ-ment”, 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. 19-20).

2.3.4 National Employment Strategy 2015

The National Employment Strategy was ad-opted by the Ministry of Labor and Social Policy for the 2011-2015 period. The strategy focuses also on youth as a specifically affected age cat-egory when it comes to employment (National Employment Strategy of the Republic of Mace-donia 2011-2015, pp. 7 and 22). Thus forth spe-cific target is set for adopting measures for fight-ing youth unemployment (National Employment

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 edu-cation system with demands of the labor market, volunteering and apprenticeship, increased mo-bility, 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 an-ticipate measures for increasing the employment percentage of the said category of people. In another document, the Strategy for the Elder-ly 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 per-sons and they will be one of the priorities in all strategic documents pertaining to employment” (Strategy on Elderly People, p. 26).

2.4. SITUATION ANALYSISThis 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 discrim-inatory practices on the grounds of age

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

tion, they must meet the condition of indispens-ability 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 candi-date for position of salesperson at showroom for bathroom furniture and accessories must not be older than 30.13

The age as employment criterion is particu-larly required by private employers, who do not have the knowledge or sensibility that such dis-criminatory criteria must not be set. Annual re-ports 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 Protec-tion Against Discrimination.

With regards to rights pertaining from labor relations, discrimination on ground of age can occur in different forms. It can appear in rela-tion 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 alle-gations of discrimination on ground of age con-cerning 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 ser-vice 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

36 37


principle of proportionality and indispensabili-ty 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 pi-lots 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 maxi-mum 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 be-cause he/she reached a certain age.14 The man-datory termination of employment is provided for both in Labor Relations Law (article 104), and in other laws which regulate the public sec-tor, such as the Law on Courts (article 73), Law on Public Prosecution (article 66), Law on Civil Servants (article 108), Public Notary Law (arti-cle 14), Law on Higher Education (article 147). These laws provide for termination of employ-ment 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 employ-ment on ground of age is justified in that em-ployee’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.

In this stage of development of the concept of age-based discrimination one should analyze the arguments for the existence of such form of ter-mination of employment. In case such arguments are ample and research proves that precisely ter-mination of employment by meeting certain age affects the attainment of these legitimate goals, they can be supported. However, given the pro-cess of population ageing in global terms, one should analyze the possibility for loosening the concept of mandatory termination of employ-ment on grounds of workers’ age in Macedonia as well.

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

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).

met as per article 6 of the Directive 2000/78/ЕС (ECJ, case Palacios de la Villa v. Cortefiel Ser-vicios 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 indis-pensability 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 work-ing 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 Sta-tistical 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 Gov-ernment is contemplating measures for facilitat-ed 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 la-bor market (National Strategy for Elderly People 2010-2020, pp. 25-26).

2.4.2. Perception of dis-crimination 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 discrimina-tion on the grounds of age, for example, in the vacancy announcements or in the legislation it-self, as stated above.

The same is also backed up through the small number of reported cases of alleged discrimina-tion on the grounds of age (see below).

According to the Barometer for Equal Op-portunities, age is perceived third as a form of discrimination, following political and ethnical background. According to 48.5% of the respon-dents, 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 discrimina-tion on the grounds of age does not fit the low number of reported cases before the relevant in-stitutions.

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 with-in 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 unfamil-iar with the concept of discrimination, especially concerning age-based discrimination, which re-

38 39

(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 qualifi-cations (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 [email protected] 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.


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 Elimi-nation of All Forms of Discrimination against Women on 18 December 1979, UN made a sig-nificant step forward in protecting and develop-ing human rights in general. The Convention, which is the fruit of the thirty years’ work of the UN Commission on the Status of Women estab-

lished in 1946 and promoting the status of wom-en, is considered to be the most substantial inter-national legal instrument universal to this area. The Convention, which consists of 30 articles, encompasses internationally recognised princi-ples 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, in-cluded 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 coun-tries are obliged to pursue a policy of eliminat-ing discrimination by means of proper measures and actions, mainly pertaining to the following: embodiment of the principle of equality and pro-

vision of the right to legal protection in the na-tional legislation, amendments to the legislation related to gender issues, elimination of any type of discriminatory customs and practices, under-taking legal and other necessary measures in all fields of society, economic field included, for the advancement of the status of women. Signifi-cant to the advancement of the status of wom-en is article 4, underlining that the adoption of temporary special measures aimed at accelerat-ing 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 wom-en. All this is towards eliminating prejudices, and customs, practices or any behaviour which is based on the idea of inferiority, or rather, superi-ority 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, em-ployment 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 ad-ditional means of monitoring Convention’s im-plementation. The Optional Protocol also fore-sees 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 im-plementation 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 op-portunities and equal treat-ment of men and women in matters of employment and occupation

The aim of this Directive is to simplify, mod-ernise and promote legislation of the Union in the area of equal treatment of men and women in matters of employment and occupation by bring-ing together in a single text the main provisions existing in this field, as well as certain develop-ments 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

Sex3

sults from the lack of a solid strategy for promot-ing the knowledge related to this concept (Ba-rometer 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 pro-cedures for the protection against discrimination on the basis of age, since they are unaware of be-ing 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 2009-2012, only 110 cases of alleged discrimination were reported to the Ombudsman, whereas none of them pertains to the individual’s age as a dis-criminatory ground (Annual Reports of the Om-budsman 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

no spectacular number of cases of discrimina-tion. In 2011, a total of 60 cases of alleged dis-crimination were reported, three of which were age-based. In 2012, the number of reported cases was 75, three of which, once again, were age-based. 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 Constitution-al Court concerning the mandatory termination of the working relations mentioned above, the Court decided in way which is rather inappropri-ate 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 in-stead, it concerned age as a requirement for ob-taining a scholarship.15

40 41

(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.


of the rights. From CJEU’s practice one can con-clude that the court does not accept justifications of discriminatory treatment based on gender, which are simply based on financial or manage-rial opinions of employers.

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 vo-cational training and promotion; working con-ditions, including pay; and occupational social security schemes.

The Directive forbids both direct and indirect discrimination, related to harassment, sexual ha-rassment, pay and benefits under the occupation-al 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 in-troduced 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 hin-drance to member states in taking measures for positive discrimination, that is, measures putting the less represented gender in a favourable posi-tion in order to provide its individuals easier ac-cess to vocational training or to compensate for the less favourable position in the development of their professional career.

This part also includes provisions from Direc-tive 2002/73/EC related to an enhanced protec-tion 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 re-cently given birth or are breastfeeding).

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

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 monitor-ing concerning application and regard for the principle of equal treatment, and also to provide assistance to victims of discrimination.

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 amend-ment 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 sys-tem marked by effective, proportional and prop-er penalties aimed for those violating any right guaranteed by the Directive. Moreover, the Di-rection 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 pro-viding consistent application of the principle of equal treatment. Concerning prevention, the Di-rection recommends that member states encour-age 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 pre-paring legal and other regulations, and when un-dertaking other activities in the fields covered by the Direction, and to ensure the widest possible dissemination of all relevant information to all parties concerned.

3.2. NATIONAL LEGAL

FRAMEWORK


The Constitution of the Republic of Macedo-nia 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 Consti-tution of the Republic of Macedonia unequivo-cally indicates sex as one ground for discrimi-nation. Henceforth, and in accordance with the mentioned principle of equality, non-discrim-ination 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 Rela-tions

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 per-tains 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 preg-nancy, birth and maternity, or that is, protection of women as mothers (protection of mother-hood). As regards the protection from discrim-ination, 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 La-bour Relations regarding discrimination can be divided in two parts, as follows: provisions concerning the prohibition of direct or indirect discrimination, harassment and sexual harass-ment; 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 physi-cally 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 protec-tion 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 candi-date’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 em-ployment for her pregnancy, in the same manner as the employer must not inquire about pregnan-cy-related data in any other stage of the labour relations.

Moreover, the Law on Labour Relations stip-ulates 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 lay-

42 43


offs for any reason (personal, reasons of guilt, business reasons). In order to improve this le-gal provision, the decision for the termination of a pregnant worker’s employment agreement, given that the employer had known of her preg-nancy, should be considered invalid if the work-er within a given period (as additionally deter-mined by another provision of LoLR) submits a medical statement confirming her pregnancy.

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 intro-duce a provision protecting the pregnant workers in such cases.

Upon the expiration of the maternity leave the worker should be restored to the previous posi-tion. Another issue are the cases when assign-ment 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 po-sition for which she had concluded an employ-ment 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 legisla-tion 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 pro-tection 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 recent-ly given birth or are breastfeeding, adopted in

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

3.2.3. Law on Equal Oppor-tunities of Women and Men

January 2012 saw the adoption of the Law on Equal Opportunities of Women and Men. This adoption made further provisions for establish-ing 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 ob-ligations of the parties responsible for providing equal opportunities, and implemented the pro-cedure for determining non-equal treatment of women and men by the Representative for Equal Opportunities between Women and Men.

The basic objective of the Law on Equal Op-portunities of Women and Men is the establish-ment of equal opportunities between women and men in the political, economical, social, educa-tional, cultural, health care, civil and any other field in society. The law, inter alia, includes defi-nitions for discrimination based on sex, direct and indirect discrimination based on sex, harass-ment and sexual harassment based on sex.

Although adopted in 2012, the law, neverthe-less, has certain flaws, in particular concerning the definition of direct discrimination (article 4 paragraph 3), where types of involuntary ac-tion are not mentioned, thus inferring the risk to exclude a type of action which is not stat-ed. 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 unfa-vourable 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

position, and not that it places or may place them into particularly unfavourable position. The law provides a possibility to objectively justify indi-rect discrimination by a legitimate goal and the proportionality test.

Article 8 paragraph 1 indicates the entities that adopt specific measures, whereas paragraph 4 pertains to the entities which have adopted spe-cial measures, pointing out that they are to sub-mit 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 declar-ative in nature, no penalty should be foreseen.

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, com-mittee, etc.


The Law on Prevention and Protection against Discrimination is almost entirely harmonised with Directive 2000/78/EC establishing a gener-al 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. Regard-ing discrimination on the ground of sex, article 3 of the law indicates sex as one discriminatory ground, whereas article 6 defines sexual harass-ment as an unwanted behaviour of sexual char-acter. Articles 14 and 15 provide for the excep-

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

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 occu-pation 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 oc-cupation connected to certain religion. Outlining the exceptions to discrimination, further on, arti-cle 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 writ-ing. The same is valid for the measures aimed at securing a balanced participation of men and women, as long as these measures are necessary.

3.3. NATIONAL POLICIES

3.3.1. National Strategy on Gender Equality for 2013-2020

The National Strategy on Gender Equality is a strategic document of the Republic of Mace-donia aimed at promoting equal opportunities between women and men in the Macedonian so-ciety for the period 2013-2020.

The Strategy is an upgrade of the current na-tional policy translated into the National Action Plan for Gender Equality 2007-2012 (herein-

44 45


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 uni-versal social and political priority. The document will also set up the basic steps and specific direc-tions for complete achievement of gender equal-ity 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 wom-en and gender equality is a pending task of all stakeholders. The recent strategic document NAPGE shows solid realisation of the enhance-ment of human and women rights, through the monitoring of and amendments to the domestic legislation in line with the international stan-dards and EU directives, through dissemination of international documents about the rights of women and establishment of a mechanism re-cording discrimination on the ground of sex, as well as through efforts to strengthen institutional capacities.

As regards decreasing gender-based discrim-ination in employment, the strategy points out that economic empowerment of women is a crucial factor and an objective in achieving gen-der 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 em-ployees 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 strat-egies.

The Strategy also contains a four-year Na-tional Action Plan for Gender Equality, which foresees taking short-term and medium-term ac-

tivities to be realised through annual operation programmes.

3.3.2. National Strategy on Equality and Non-Discrim-ination on the Grounds of Ethnicity, Age, Mental/Phys-ical Disability and Sex for 2012-2015

In May 2012 the Government of the Repub-lic of Macedonia adopted the National Strategy on Equality and Non-Discrimination, the aim of which was to improve the status of the most vul-nerable 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 discrimi-nation, gender included. Based on the Strategy, an action plan has also been prepared, with an aim to provide operational and continuous de-velopment in the realisation of the right to equal-ity 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 hori-zontal 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 So-cial Exclusion has been prepared as a document depicting the intention of the Government of the Republic of Macedonia to level the degree of in-

clusion and welfare in all strata of society. The strategy has been designed according to given fields and areas in which poverty and social ex-clusion are noticeable.

The strategy contains a separate chapter and an area concerning equal opportunities for wom-en and men.

According to the 2007-2012 National Plan for Gender Equality and the Law on Equal Op-portunity 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 strength-ening 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 im-proving 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 vulnera-ble 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 pop-ulation, 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 as-sistance in agriculture and craftsmanship. The active employment policies cover only the cat-egory 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 encourage-ment 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 employ-ment, one should pay due attention to the dual discrimination and difficulties that rural women and women from the ethnicities face in the la-bour 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 ac-cess 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 challeng-es on the labour market which relate to the pe-riod 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 antic-ipated goals to be achieved by 2015, and deter-mines the policies that should aid the realisation of the planned objectives.

The Strategy contains a special part about tackling unemployment of women, which, de-spite noting positive trends concerning gender representation, it is observed that the participa-tion 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 em-ployment rate in the same period showed 34%, that is, 18% lower than for men, and the unem-ployment rate was 32.2%, or 0.3% lower than for men. This analysis mainly ensues from wom-en’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

46 47


(knowledge, skills and access to work); develop-ment 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.

3.4. SITUATION ANALYSIS

3.4.1. Perception of dis-crimination on the ground of sex

Although women in Macedonia are equal to men, they are still in an inferior position regard-ing many fields of social living. As to discrim-ination of women in employment and in the course of work, women often face several types of discrimination, that is, based on gender/men-tal 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 instanc-es as absence from public life, greater poverty, greater illiteracy, dropping out, increased num-ber of marriages of female children, domestic violence, are not perceived as manifestations of gender discrimination.

Even though the country has an anti-discrim-inatory legislation, whereas occurrences of dis-crimination 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 bene-fits to the employers. One reason for women be-

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.

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 wom-en. 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 Chris-tians. Victims of gender-based discrimination are very likely to be victims of discrimination on other grounds (Petrovska Beshka, Najchevska, 2009, p. 49).

Most common type of discrimination on the ground of sex are the vacancy announcements. In the advertisements there is not only gen-der-based discrimination, but also age-based discrimination (Survey of the discriminatory employment advertisements, 2013).

In terms of the economic status in 2011, wom-en 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 work-ers” 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 sub-missions for the most part concern working

and work relations, which points to the fact that discrimination is most prevalent in the above-mentioned 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 whatso-ever 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 gen-der, for most of them other type of discriminato-ry 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 represen-tative as well. A report for discrimination on the ground of sex concerning employment was sub-mitted only in 2012, upon which no discrimina-tion was confirmed (Analysis of the degree of implementation of the Law on Equal Opportuni-ties of Women and Men, 2011, p. 21).

The 2012 report of the Ombudsman, regard-ing gender-based discrimination only noted some progress in the area, whereas the Om-budsman 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).

From the practice of the State Labour Inspec-torate 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 employ-ment, even though her position is not terminated, but simply filled in by a new person. The inspec-torate 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 employ-ment where it is obvious that the worker is laid

off due to her pregnancy, in which case the in-spectorate 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 Dis-crimination. Analyses indicate that in the period 15 November 2012 to 15 May 2013 a total of nine proceedings for discrimination in the work-place (mobbing) were noted, all of which were initiated in line with the Law on Labour Rela-tions. Four lawsuits were filed by women, which related to harassment in the workplace (Analysis of the practical application of the Law on Pre-vention 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.

48 49


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 discrimi-nation on the grounds of mental or physical dis-ability is quite high, that is, 45% of the respon-dents 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 vic-tims 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 respon-dents find discrimination on the grounds of men-tal disability and physical disability, respective-ly, 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 insan-ity connected to this group of people, and this represents a serious trigger for future discrimi-nation 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 them-self, 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 nev-ertheless a significant tell-tale for the current sit-uation of these persons.

4.1. INTERNATIONAL

LEGAL STANDARDS

The international legal standards undubious-ly 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 pro-tection of this right, therefore, is clearly regulat-ed 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 arti-cle 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 disabili-ties have very often been prevented from exer-cising their economic, social and cultural rights on an equal basis with persons without disabili-ties. The effects of disability-based discrimina-tion have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and ser-vices” (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

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 re-port 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, prac-tice shows that this rarely happens. For these reasons, this gap was filled by adopting the Con-vention on the Rights of Persons with Disabili-ties, elaborated further in the text. It should be underlined that these legal instruments are rat-ified by the state and pursuant to article 118 of the Constitution they represent part of its inter-nal 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 Option-al Protocol to it were ratified in 2006, and en-tered into force on 3 May 2008. Presently, 156 countries have signed the CRPD, whereas 132 have ratified it, 91 has signed the Optional Pro-tocol, and 77 have ratified it. The Republic of Macedonia signed the CRPD on 30 March 2007, and ratified it on 5 December 2011. Further-more, 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 ba-sic text numbering 50 articles, most of which are hybrid in character, that is, they are inter-dependent 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 im-plementation 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 in-terest 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) appli-cability, 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 dis-abled 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 arti-cle 2, means “any distinction, exclusion or re-striction 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 funda-mental freedoms in the political, economic, so-cial, 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.

50 51

Mental and physical disability4


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 nec-essary 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 rela-tions should inevitably address article 27 of the Convention, which relates to this field specifical-ly. 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 mar-ket 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 dis-ability 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 con-ditions and equal remuneration for work of equal value (article 27 paragraph 1 point b). Further-more, countries are obliged to provide reason-able 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 ac-commodation, as well as the facts on which its appropriateness/rationality will be assessed. An-other aspect covered in this article is the protec-tion of labour and trade union rights of persons with disabilities on equal grounds with others

(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 employ-ment 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, men-tal and physical discrimination included. In re-lation 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 (here-inafter: Directive 2000/78/EC), is of utmost importance to prohibiting discrimination on the grounds of mental and physical disability re-garding this wide field. Ratione materiae of the Directive 2000/78/EC is prohibiting discrimi-nation, 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 per-tains to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions

(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 mem-bers 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.

As to the rationale personae, Directive’s aim is to set up a general framework to combat dis-crimination on four grounds, including mental and physical discrimination, in employment, oc-cupation and training (article 1). The terminolo-gy 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 pro-hibits 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 ac-commodation (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 ju-dicial practice of the EU Court of Justice, more specifically in the cases Chacón Navas, Coleman and Jette Ring (Poposka, 2013 pp. 16-20).

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

horizontal effect, since natural persons can sub-mit a request to other physical or legal person strictly based on a provision ensuing from the national legislation having transposed this direc-tive. 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 (Tri-dimas, 2000, p. 69).

4.2. NATIONAL

LEGAL FRAMEWORK

Regarding national legislation, there are sev-eral provisions which, directly or indirectly, re-fer 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 amend-ments to the existing laws.


The Constitution of the Republic of Macedo-nia, in article 32 stipulates the right to work and related rights thereof. This right is of general applicability and foresees that everyone [includ-ing persons with physical and mental disability] has the right to work, to free choice of employ-ment, 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-

52 53

(17) Legislation abounds in terms referring to this group of persons. The author opts for the term persons with men-tal 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.


as every employee has a right to appropriate re-muneration (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 condi-tion for their involvement in the life of the soci-ety. Article 32 paragraph 2, that is, the non-dis-crimination clause, should be read in line with article 9 of the Constitution, which contains the equality clause explained above.

4.2.2. Law on Labour Rela-tions

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 employ-ment candidate and the worker. Discrimination is prohibited in regard to conditions for access to employment, to self-employment or to occupa-tion, including selection criteria and recruitment conditions; access to all types and to all levels of vocational guidance, vocational training, ad-vanced vocational training and retraining, in-cluding 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 partic-ular profession, including the benefits provided for by such organisations (article 7 paragraph 4).

One drawback is the fact that the law neither

provides for the instruction for discrimination, nor does it clearly prohibit discriminatory adver-tisements or statements grounded on mental or physical disability. The Law in article 24 para-graph 1 unequivocally prohibits the discrimina-tory advertisements on the ground of sex, and stipulates that: “[t]he employer shall not adver-tise 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 interna-tional non-discrimination standards.

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, un-less the employer sends the candidate to an ex-amination 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 con-dition shall not pertain to circumstances unrelat-ed 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 discrimina-tion of persons with mental or physical disabil-ity, 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, al-though seemingly neutral, still has a dispropor-tional adverse effect to the disabled persons, since the entire group a priori is prevented from applying for employment. Although this criteri-on would be valid for some groups of persons with disability, still, for the persons with physi-cal or sensory disability, who are of psychophys-ically capable to carry out the essential tasks on the job, this criterion bears no is irrelevant, and therefore extremely discriminatory. For this rea-son, there should be a distinction between health

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 de-tected 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 al-ways entail discrimination, it should be revised and put under judicial control. Authors, there-fore, suggest reconsidering this criterion, which limits the accessibility of disabled persons to work positions in the state administration, judi-ciary and legal practice, and providing specifica-tions 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 Re-lations 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 educa-tional 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 dis-abled worker with at least 60% bodily impair-ment and a worker caring for a child with physi-cal 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 specif-ic 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 spe-cific 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 there-of”. Practice shows that it fails to cover all cate-gories of persons with disability, especially those performing their occupation or profession inde-pendently, 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 rec-ognise, since a sole proprietor is a natural person who performs a commercial activity, whereas it is unclear how a person independently perform-ing 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 employ-ment of persons with mental and physical dis-ability, such as: awarding of non-refundable funds for full-time employment of persons with disabilities, accommodations of the position des-ignated 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 basical-ly 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

54 55


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 per-sons with mental and physical disability, with no exception, entails providing reasonable accom-modation 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 accommoda-tion concerning persons with disabilities, stating that “[i]n hiring a person with disability, the em-ployer 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 clar-ifying the provision, it is left to the courts to de-lineate 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-refund-able funds from the Special Fund for improve-ment 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 em-ployment and work of persons with disabilities

(articles 8 and 20). But, what is concerning is the fact that the funds contained within the Spe-cial Fund are constantly reduced, hence causing a lack of funding for employment and reason-able accommodation aimed at persons with dis-abilities. 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 strength-en its role and capacity in the system, and to di-minish 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 accommo-dation, 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, dis-putable 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 em-ployer, if this person acquires a positive opinion from the Commission of the Ministry of Labour and Social Policy ...” Although the authors be-lieve that it wasn’t legislator’s intention to dis-criminate 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 mistreat-ment, nevertheless, the formulation of the pro-vision 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 exam-ple of discrimination beginning as a harassment and based on law.

At the end, of special interest is the matter of sheltered facilities. The law and the two rule-books thereof regulate the issue of employing disabled persons in the sheltered facilities. Arti-cle 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 disabili-ties, whereas at least half of them are with con-firmed disability”. The sheltered facilities are ex-empted from income tax and all income-related expenditures, and employees of the sheltered fa-cilities 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 em-ployment 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.


The employment of persons with mental and physical disability is inevitably linked to the cre-ation of employment opportunities, by guaran-teeing 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 an-alysed 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 pri-vate 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 infra-structure and the services is adopting appropri-ate 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 per-sons 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 dispropor-tionate encumbrance, as formulated within the Law, the national legislation, unlike other coun-tries, neither analyses it, nor does it condition it with the size and the status of the legal persons (public or private), the financial costs, employ-er’s turnout and source of funding, as well as the possibility to acquire public funds or any other assistance. The authors believe that any amend-ments to this law require unequivocal placement of this clarification. (Poposka, 2012, pp. 302-303).

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 dis-crimination if it is a measure foreseen by law and aims at employment promotion (article 15 paragraph 1 point 2)3; in providing for a genu-ine and determining requirement in employment

56 57


(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 para-graph 1 point 3); in providing special protection stipulated by law, inter alia, to persons with men-tal 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 2010-2018

In the course of promoting the status of the persons with mental and physical disability, and their integration to the social trends, the Govern-ment 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 sta-tus of persons with disabilities to a position of equal citizens with all rights and responsibili-ties” (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 employ-ment to disabled persons, by developing and ap-plying systemic solutions based on the needs and capabilities. The following measures are fore-seen for achieving this objective: strengthening the capacity of all concerned institutions; devel-oping mechanisms and resources for profession-al rehabilitation, and development of vocational

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 employ-ment information systems (National Strategy, 2010, pp. 23-24).

4.3.2. National Strategy on Equality and Non-Discrim-ination on the Ground of Ethnicity, Age, Mental/Phys-ical Disability and Sex for 2012-2015

The 20120-2015 National Strategy on Equal-ity 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 pro-tection 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 so-ciety, 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 educa-tion to persons with mental and physical disabil-ity on equal grounds with the others (strategic objective II); provision of access and accessibil-ity for persons with mental and physical disabil-ity 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,

whereas it underlines the reasonable accommo-dation to the work place for persons with disabil-ities, that is, enhancing the capacity of all stake-holders regarding the translation of this norm into practice. At the same time, the amendments to the Law on Employment of Persons with Dis-ability, 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 elaborat-ed in the 2012-2013 Operational Plan, which puts stress on the following: promoting the le-gal 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; de-veloping 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 employ-ment 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 2010-2020

The 2010-2020 National Strategy on Reduc-tion of Poverty and Social Exclusion considers four priority areas as follows: employment; in-formal economy and enhancement of entrepre-neurship; labour marker; and poverty and social inequality. It should be highlighted that although the persons with disability have not been explic-itly discerned as the Strategy’s particular target group, still, in area 1, which refers to employ-ment, 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 fol-lowed 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 ob-jectives, 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 unem-ployment 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 Strat-egy is carried out through the 2012-2013 Na-tional 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 Dis-ability). This merely reiterates the lack of strate-gic approach to this group of persons (Poposka, 2013, p. 34).

58 59


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 dis-ability, the active employment policies wiould not be able to reach the desired goals set in the National Employment Strategy, thus marginalis-ing this group of citizens even further.

4.4. SITUATION ANALYSIS

4.4.1. Perception of dis-crimination on the grounds of mental and physical dis-ability

The number of employed persons with mental and physical disability compared to the overall population employed in the Republic of Mace-donia 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 dis-

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 de-velopmental 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 disabil-ities, 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 per-sons with mental disability, followed by the per-sons with physical disability, are discriminated the most in employment, owing to the numer-ous 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 per-son 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 oth-ers (NGO Ergos, Skopje, 2003), a phenomenon manifested with the receiving of smaller pay for

the same work, lesser chances for promotion and harassment in the work place. A total of 25.9% of the respondents with physical disability be-lieve that they have been discriminated in the work place, with the people in the age group 35-49 considering themselves as discriminated most often. Another hot issue ensuing from this sur-vey is its problematising the multiple discrim-ination of women with physical discrimination and of older persons (aged above 50) with phys-ical disability (Jovanova, Dimitrijoska, Tomovs-ki, Ignjatovik, 2009).

Viewed from both legal and practical percpec-tive, of special interest for consideration is the issue of sheltered facilities. Data acquired from the State Statistical Office show that as of 31 De-cember 2010 there are 268 employment services employing a total of 2.394 persons with disabili-ty, most of whom have been employed in Skopje (416), Veles (337) and Bitola (301) (State Sta-tistical Office, No. 2.4.11.16, 2011, p. 43). Sur-veys conducted, especially in regard to persons with physical disability, showed that 55.8% of all employees with physical disability were em-ployed 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 facil-ities (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 de-termined that in 2011, a total of 63 submissions were filed, of which only 6, that is, 9.52% per-

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 Com-mission received a total of 76 cases, of which

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).

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).

60 61


eight, that is 10.53%, concerned alleged discrim-ination 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 institutionalisa-tion risk, as well as the restricted access to public facilities and services”. (2012 CPD Annual Re-port, 2013, p. 22)

From the total number of submissions to the Commission for Protection against Discrimina-tion 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 sub-missions, that is, on two submissions the Com-mission 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 disabil-ity 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 sub-missions pertain to the labour relations rights, whereas most of them refer to employment, de-termination of employment status, transforma-tion of labour relations, and to allocation. On the other hand, only 0.74% of all submissions con-cern non-discrimination, none of which relates to an alleged discrimination on the grounds of

mental and physical discrimination.

Based on the data from the analysis conduct-ed by the Ombudsman, it can be concluded that there is a cyclic inclusion of mentally or phys-ically 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 chal-lenges ‒ Analysis of the employment of persons with disability, Ombudsman, 2012, p. 24-28). The Ombudsman thereby concluded that the per-sons with disability are employed only in shel-tered 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 accom-modation to the work place. At the same time, the Ombudsman concluded that there is a need to promote the process of categorising the dis-abled 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 dis-ability, 2012, pp. 24-28).

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 de-duced 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 unrea-sonable accommodation to the work place, the lack of working assistance, but also their treat-

ment in the work place, the misuse of their la-bour, 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 re-sponse (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 respon-dents, 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 un-derstanding 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).

62 63


6564

INSTITUTIONAL FRAMEWORK

Institutions of importance to the pro-tection against discrimination on the grounds of ethnicity, gender, age, and mental and physical disability in the field of employment and labour rela-

tions, 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 treat-ment of women and men.

1. COMMISSION FOR PRO-TECTION AGAINST DIS-

CRIMINATION

The Commission for Protection against Dis-crimination 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 equal-ity 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

of individual cases and giving opinion and rec-ommendations 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, giv-ing opinions about law proposals relevant to the protection against discrimination on the grounds mentioned, giving recommendations and initiating amendments to the regulations for the implemen-tation and promotion of the protection against dis-crimination);

investigative, analytical and reporting compe-tencies (gathering statistical data and forming data bases, conducting studies and surveys, reporting); and

capacity building and cooperation with oth-er bodies (cooperation with the units of the local self-government and the central authorities, pro-vision of discrimination-related training, coop-eration 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 men-tal and physical disability).

Pursuant to the Law, every person who be-lieves 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 sub-mission, to act upon it and to remove any vio-lation 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 rec-ommendation within the period indicated, that is, fails to rectify the violation of the right, CPD may initiate legal proceedings before the rele-vant body to determine the person’s responsibil-ity (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 age-based discrimination. The most frequent area showing discrimination is employment and la-bour relations with 47.62% of the overall sub-missions (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 eth-nicity, then 8 or 10.53% to alleged discrimina-tion on the grounds of mental and physical dis-ability, 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 sub-missions about ethnicity in employment and labour relations concern legal persons, employ-ers, 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 unem-ployment 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 con-stitutional and legal rights of citizens and all oth-er 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 pro-tect persons bearing a protection characteristics which is subject of this analysis (given ethnici-ty, gender, age or mental and physical disabili-ty) and protect them from discrimination on the grounds indicated in employment and labour re-lations in the public sector.

In this respect, the Ombudsman as an indepen-dent 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 (ar-

IV


6766

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 (arti-cle 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 depart-ments. For that purpose, besides the casework done in the area of labour relations, a special Department for protection against discrimina-tion has been established, providing proper legal representation within the eponymous institution.

This can be illustrated through a few statisti-cal data from the Ombudsman’s Annual Report concerning protection of the rights in labour relations, and non-discrimination, in gener-al. Namely, in 2011 9.68% of the total number of submissions fall under the labour relations rights, 33.25% from which pertain to employ-ment, allocation and take-in procedures, 25.97% to the procedure for payment of pays and other compensations, 11.41% pertain to the employ-ment termination procedure, 6.55% to proce-dures upon complaints and objections, 5.10% to the procedure before the Employment Service Agency, 2.67% to the disciplinary procedure to-ward 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 un-professional acts of employers toward workers, who suffer adverse consequences only to pre-serve 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

part. Namely, 7.04% of the total submissions pertain to the labour relations rights, whereas most of them refer to employment, determina-tion of employment status, transformation of labour relations, and to allocation. On the other hand, only 0.74% of all submissions to the Om-budsman 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 be-lieves that more detailed surveys should be done in the future, for the purpose of establishing the cause for the occurrence in question, and under-taking measures and activities (2012 Annual Re-port, 2013, pp. 37-39 and pp. 61-62).

Further in relevance to these grounds, the Om-budsman in 2012 conducted a survey about the exercise of the right to employment of persons with special needs, showing that “[a]lthough there is a solid framework in terms of laws and by-laws, what lack is its consistent and full im-plementation. 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, ob-ligations 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 dis-couraged 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 employ-ment and change of work position.” Among oth-er 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 re-lation ceased according to the law, but also of

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 per-sons (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 REPRESENTA-TIVE CONDUCTING

PROCEDURES TO ES-TABLISH UNEqUAL

TREATMENT OF WOM-EN 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 fore-seen the employment of the legal representa-tive 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), pro-viding 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 un-equal 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 implementa-tion of the Law on Equal Opportunities of Wom-en 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 IN-

SPECTORATE

The State Labour Inspectorate is a body with-in the Ministry of Labour and Social Policy. Ac-cording 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, Train-ing and Administrative Execution, whereas de-partments consist of five labour relations units. There are 99 labour inspectors allocated in 30 areas, 63 of whom are related to the area of la-bour relations.

The State Labour Inspectorate performs con-trol, inter alia, under the following regulations: Law on Labour Relations, Law on Labour In-spection, 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 implemen-tation of the laws and other regulations as re-


68 69

gards labour relations, employment, collective and work agreements regulating the rights, obli-gations and responsibilities of the worker or em-ployer 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 la-bour inspectors in the regional units and inspec-tors 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 inspec-tors 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 re-dundancy, and 466 for the remaining cases (2011 Report on the work of the State Labour Inspec-torate, 2012, pp. 1-6).


7170

CONCLUSIONS AND RECOMMENDATIONS

VCONCLUSIONS

• 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, includ-ing the protection against discrimination on these discriminatory grounds is rela-tively solid. Nevertheless, the legislation contains inconsistencies because of the obvious contradictions therein, certain terms are not well adjusted and the con-cepts of discrimination are wrongly set out, such as the definitions and the excep-tions to discrimination in the Law on Pre-vention and Protection against Discrim-ination. 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 peri-od 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 imple-mented, 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 com-monly perceived form of discrimination by the citizens. In addition, the cases re-ported before the Commission for Pro-tection against Discrimination and the Ombudsman are mostly related to dis-crimination 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 compa-nies should be a transitory solution to-ward their full employment on the open labor market; it should not derogate from this second possibility or from the possi-bility to become employed in the public sector.

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

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

• Continue with the application of the prin-ciple of adequate and equitable repre-sentation, with a special emphasis on the managerial functions and the situation with the smaller communities.

• Explicit prohibition in the labor legisla-tion as well as in the anti discrimination legislation of discriminatory announce-ments or statements on grounds of mental and physical disability, ethnic origin and age.

• Provide that instructions to discriminate shall constitute a specific form of dis-crimination in the Labor Relations Law.

• The legal institute of reasonable accom-modation is a fairly new concept in our legal system, hence the need for precise provisions about it both in the labor leg-islation and in the anti discrimination leg-islation.

• 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 ex-ception(s) in line with the relevant EU Directive.

• Refine the Labor Relations Law in terms of introducing provisions about protect-ing pregnant women that have signed an employment contract for a definite peri-od 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.

• 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 ful-ly 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/func-tion (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 Para-graph 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 man-agerial 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 discrimina-tion on the grounds of age and mental and physical disability in the labor field.

• Raise the public awareness among pri-vate sector employers about the discrim-ination of women on the grounds of their marital status, family status, age and pregnancy status.


7372

METHODOLOGYAPPENDIX

As part of the project “Support to the further development of an effective equality infra-structure” supported by the OSCE Mission to Skopje and

the project “From legislation to practice” im-plemented under the scope of the Progress Pro-gramme 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 em-ployment 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 Ko-choska. 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 pro-cessing the necessary data concerning the prepa-ration 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 practic-es on the four bases of discrimination contained in the Law on Prevention and Protection against Discrimination (2010) in the area of employment

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 discrimina-tory 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 rela-tion to its length, owing to both the number of discriminatory grounds contained in the Law of Prevention and Protection against Discrimina-tion analysed further in the text, and to its pur-pose ‒ to serve as a guideline to the state institu-tions 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 Om-budsman).

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 re-search 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-

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 Pro-tection against Discrimination, and the OSCE Mission to Skopje.

ACTIVITIES

a) Review of the literature / documents

During the initial stage of the research, the ex-perts, 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 discrimi-nation in the area of employment and labour re-lations on the grounds of ethnicity, age, gender, and mental and physical disability. This entailed analysis of the previous experiences on the sub-ject, as well as databases from the relevant insti-tutions, like the Ministry of Labour and Social Policy, the Ombudsman, and the Commission for Protection against Discrimination. The ex-isting literature and data taken into account were as follows: legal documents (domestic laws, pol-icies 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, Ombuds-man, legal representative conducting procedures to establish unequal treatment of women and men, international courts and bodies); and aca-demic literature (domestic and foreign papers). In preparing the review consulted were also civil organisations following the matter of protection against discrimination in employment and la-bour relations, and other relevant stakeholders.

The literature review was carried out in the pe-riod April ‒ July 2013.

b) Interviews of relevant stakeholders

Having regard to the low general awareness of citizens concerning their right in general, and especially concerning discrimination, the dis-criminatory practices in employment and labour relations are rarely discussed, whereas the prac-tice of reporting cases of mistreatment by indi-viduals of different groups is quite uncommon. On the other hand, most citizens have an opin-ion on this issue. Therefore, in addition to the literature/document review, interviews were also conducted with the relevant stakeholders and ex-perts regarding their perception and assessment of the legal and institutional framework, as well as the situation in practice about this exception-ally important issue. Semi-structured interviews were designed with the assistance of a guide for conducting interviews. The interviews encom-passed several sectors of society, that is, inter-views 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 inter-views were processed by means of qualitative content analysis. This approach enabled a flexi-ble, 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.


c) Case studiesThe case studies offer qualitative complemen-

tation of the previous two methods and allowed the implementation of a practical analysis on concrete issues or aspects. This part of the anal-ysis saw the review of already documented cases from the media, the practices of the civil organ-isations, 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 documenta-tion, the interviews conducted and other activi-ties were analysed and included within the draft of this analysis. The primary findings and con-clusions 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, in-tended for the policy-makers and general public, presenting the main findings, achievements and flaws of the legal and the institutional frame-work, the situation analysis on each ground sep-arately, as well as the recommendations to make improvements.

e) Monitoring of the pro-cess of preparing the anal-ysis

During the project period four meetings were organised among the Ministry of Labour and So-cial 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 find-

ings and to agree on the means of conducting in-terviews 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 analy-sis, 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.

74


REFERENCES

Amendment VI to the Constitution of the Republic of Macedonia, Official Gazette of RM, No. 91/2001. Available at: <http://www.slvesnik.com.mk>. [Accessed on 20 August 2013].

Analysis of the employment of persons with disability, Polio Plus, 2013.

Analysis of the degree of implementation of the Law on Equal Opportunities of Women and Men, Ministry of Labour and Social Policy, Skopje, June 2011.

Analysis of the practical application of the Law on Prevention and Protection against Discrimina-tion, Shelter Centre, Skopje, 2013.

Arnardóttir O.M., A Future of Multidimensional Disadvantage Equality?, in G.Quinn, O.M.Arnar-dottir, The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspective, Boston – Leiden, 2009.

Bayefsky A.F., The Principle of Equality or Non-Discrimination in International Law, 11 Human Rights Law Journal 1, 1990.

Employment of Persons with Disability during Transition, NGO Ergos, Skopje, 2003. Available at: <http://www.nvoinfocentar.org.mk/event.asp?site=nvo&menu= 3&lang=mak&id=92>. [Accessed on: 15 July 2013].

CERD General comment 24, 1999. Available at: <http://www2.ohchr.org/english/bodies/cerd/comments.htm>. [Accessed on: 21 September 2013].

CERD General comment 8, 1990. Available at: <http://www2.ohchr.org/english/bodies/cerd/com-ments.htm>. [Accessed on: 21 September 2013].

CESCR General comment 18: The right to work, 35th session, 2005. Available at: <http://www2.ohchr.org/english/bodies/cescr/comments.htm>. [Accessed on: 15 May 2013].

CESCR General comment 5: Persons with disabilities, 11th session, 1994. Available at: <http://www2.ohchr.org/english/bodies/cescr/comments.htm>. [Accessed on: 15 May 2013].

CESCR General comment 6, 13th session, 1995. Available at: <http://tbinternet.ohchr.org/_lay-outs/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11>. [Accessed on: 1 October 2013].

CESCR General comment 20, 42nd session, 2009. Available at: <http://tbinternet.ohchr.org/_lay-outs/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11>. [Accessed on: 1 October 2013].

Charter of Fundamental Rights of the European Union, Solemn Proclamation by the President of the European Parliament, the European Commission and the Council of Ministers, Nice, OJ C 364/1, from 7 December 2000. Available at: <http://www.europarl.europa.eu/charter/pdf/text_en.pdf>. [Ac-cessed on: 17 May 2013].

Concluding observations of the Committee on Economic Social and Cultural Rights, UN Doc. E/C.12/MKD/CO/1, from 24 November 2006. Available at: <http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.MKD.CO.1.pdf>. [Accessed on: 16 May 2013].

Concluding observations of the Committee on the Elimination of Racial Discrimination, UN Doc. CERD/C/MKD/CO/7, from 13 June 2007.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for Equal Treatment in Employment and Occupation, [2000] OJ L 303/16. Available at: <http://eurlex.euro-pa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:303:0016:0022:EN:PDF>. [Accessed on: 17 May 2013].

2012 Annual report on the level of respect, realisation and protection of human rights and free-doms, Ombudsman of the Republic of Macedonia, Skopje, 2013. Available at: <http://www.om-budsman.mk/ ombudsman/upload/documents/2013/GI-2012.pdff> [Accessed on: 21 June 2013].

2011 Annual Report, Ombudsman of the Republic of Macedonia, Skopje, 2012. Available at: <http://www.ombudsman.mk/ombudsman/upload/ documents/2012/Izvestaj%202011-MK.pdf> [Accessed on: 21 June 2013].

2011 Annual report of the Commission for Protection against Discrimination, Commission for Protection against Discrimination, Skopje, 2012. Available at: <http://www.kzd.mk> [Accessed on: 10 July 2013].

Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Official Journal L 180, from 19 July 2000.

Discrimination in the European Union: Perceptions, Experiences and Attitudes, Special Euro-barometer 296, European Commission, 2008. Available at: http://ec.europa.eu/public_opinion/ar-chives/ebs/ebs_296_en.pdf. [Accessed on: 5 May 2013].

ECtHR, Case relating to certain aspects of the laws on the use of languages in education in Bel-gium v. Belgium, No.1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, from 23 July 1968.

ECtHR, Stec and others v. the United Kingdom, App. No. 65731/01 and 65900/01, from 12 April 2006.

ECtHR, Thlimmenos v. Greece case, Reports 2000-IV, from 6 April 2000.

ECtHR, Timishev v. Russia case, No. 55762/00 and 55974/00, of 13 December 2005.

ECJ, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, Case C-54/07, 10 July 2008.

ECJ, Jette Ring v. Dansk almennyttigt Boligselskab DAB, Case C-335/11, and HK Dan-mark acting on behalf of di Lone Skouboe Werge v Pro Display A/S , Case C-337/1, [2013], from 11 April 2013. Available at: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= OJ:C:2011:269:0031:03:EN:HTML>. [Accessed on: 17 May 2013].

ECJ, Marshall No.2 case, Case C-271/91.

ECJ, Palacios de la Villa v. Cortefiel Servicios SA, Case C-411/05, [2006], from 16 October 2006. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 62005CJ0411:EN:HTML>. [Accessed on: 1 October 2013].

ECJ, S.Coleman v Attridge Law, Steve Law, Case C-303/06, OJ C 224, 17 July 2008.

ECJ, Sonia Chacón Navas v. Eurest Colectividades SA , Case C-13/05, [2006] ECR I-6467, from 11 July 2006. Available at: <http://www.curia.europa.eu/jurisp/cgibin/form.pl?lang=en&Submit=Sub-mit&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&nmaff=&datefs=&-datefe=&nomusuel=navas&domaine=&mots=&resmax=100>. [Accessed on: 17 July 2013].

76 77


European Commission, Macedonia 2011 Progress report, SEC(2011) 1203 final, Brussels, 12 October 2011. Available at: <http://ec.europa.eu/enlargement/pdf/key_documents/2011/ package/mk_rapport_2011_en.pdf.> [Accessed on: 15 May 2013].

European Commission, Macedonia 2012 Progress report, Brussels, 10 October 2012. Available at: <http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/mk_ rapport_2012_en.pdf> [Accessed on: 21 September 2013].

European Social Charter (revised), CETS No. 163, Strasbourg, 3 May 1996. Available at: <http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=035&CL=ENG> [Accessed on: 1 October 2013].

Employees and net wages ‒ condition in October 2009, State Statistical Office of the Republic of Macedonia, Skopje, August 2010.

Law on Legal Practice, Official gazette of RM, No. 59/2002, 60/2006, 29/2007, 106/2008 и 135/2011. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 18 July 2013].

Law on Higer Education, Official Gazette of RM, No. 35/2008. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

Law on Employment of Persons with Disability, Official Gazette of RM, No. 87/2005 (refined text), 113/2005, 29/2007, 88/2008, 161/2008, 99/2009 и 136/2011. Available at: <http://www.mtsp.gov.mk> and <http://www.slvesnik.com.mk>. [Accessed on: 10 July 2013].

Law on Volunteering, Official Gazette of RM, No. 85/2007. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

Law on Civil Servants, Official Gazette of RM, No. 76/2010 (refined text), 167/2010 and 103/2011. Available at: <http://www.mioa.gov.mk> and <http://www.slvesnik.com.mk>. [Accessed on: 18 July 2013].

Law on Equal Opportunities of Women and Men, Official Gazette of RM, No. 6/2012. Available at: <http://www.slvesnik.com.mk> [Accessed on: 10 July 2013].

Law on Protection of Patients’ Rights, Official Gazette of RM, No. 82/2008. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

Law on the Public Prosecutor’s Office, Official Gazette of RM, No. 170/2007. Available at: <http://www.slvesnik.com.mk> [Accessed on: 21 September 2013].

Law on Foreign Affairs, Official Gazette of RM, No. 46/2006 and 107/2008. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 18 July 2013].

Law on the Ombudsman, Official Gazette of RM, No. 60/2003 and 114/2009. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 June 2013].

Law on Notary Service, Official Gazette of RM, No. 55/2007. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

Law on Police, Official Gazette of RM, No. 114/2006 and 6/2008. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 18 July 2013].

Law on Labour Relations, Official Gazette of RM, No. 62/2005, 106/2008, 161/2008, 114/2009, 16/2010 (refined text), 50/2010, 52/2010, 158/2010 (refined text), 47/2011, 11/2012, 39/2012, 52/2012 (refined text), 13/2013 and 25/2013. Available at: <http://www.mtsp.gov.mk> and <http://www.slvesnik.com.mk>. [Accessed on: 20 July 2013].

Law on the Ratification of the Convention on the Rights of Persons with Disabilities and the Op-tional Protocol to the Convention on the Rights of Persons with Disabilities, Official Gazette of RM, No. 172/2011, from 14 December 2011. Available at: <http://www.mtsp.gov.mk> and <http://www.slvesnik.com.mk>. [Accessed on: 16 July 2013].

Law on Military Service in the Army of the Republic of Macedonia, Official Gazette of RM, No. 36/2010, 23/2011, 47/2011 and 148/2011. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 18 July 2013].

Law on Social Protection, Official Gazette of RM, No. 79/2006. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

Law on Prevention and Protection against Discrimination, Official Gazette of RM, No. 50/2010, from 13 April 2010. Available at: <http://www.mtsp.gov.mk> and <http://www.slvesnik.com.mk>. [Accessed on: 15 May 2013].

Law on Courts, Official Gazette of RM, No. 58/2006, 35/2008 and 150/2010. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 21 September 2013].

2011 Report on the work of the State Labour Inspectorate, State Labour Inspectorate, Skopje, 2012. Available at: <http://dit.gov.mk/godisniIzvestai_full.php?id=2011> [Accessed on: 20 June 2013].

International Covenant on Economic Social and Cultural Rights - ICESCR, G.A. Res. 2200A (XXI), U.N GAOR, Supp. No.16 at 49, U.N. Doc. A/6316 (1966). Available at: <http://www2.ohchr.org/english/bodies/cescr/comments.htm> [Accessed on: 10 May 2013].

Jovanov V., Dimitrijoska S., Tomovski S., Ignjatovik M., The position of the physically disabled persons on the labour market ‒ study of the conducted research, with the support of UNIFEM, Sko-pje, December 2009.

Jovanovska-Brezoska E., Equality as a fundamental human right ‒ with particular reference to the practice of the European Court of Human Rights in relation to the protection against discrimination, Skopje, 2011.

Kalmatiev T., Mitrevski Z., Ristovski A., Employment Rights of Women and Youth in the Republic of Macedonia, Skopje, 2012.

Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, United Na-tions, Treaty Series, vol. 660, p. 195. Available at: <//www2.ohchr.org> [Accessed on 20 September 2013].

Krzalovski A., Discrimination in Macedonia on the Grounds of Ethnic Origin, Research Report, Skopje, 2011.

International Labour Organisation, Convention concerning Discrimination in Respect of Employment and Occupation (C-111), 42nd Session of the International Labour Organisation, 25 June 1958. Avail-able at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_IN-STRUMENT_ID:312256:NO>. [Accessed on 1 October 2013].

2012-2013 National Action Plan for Employment of the Republic of Macedonia, Ministry of La-bour and Social Policy, Skopje, 2012. Available at: <http://www.mtsp.gov.mk/WBStorage/Files/ap.pdf>. [Accessed on: 18 July 2013].

2015 National Employment Strategy of the Republic of Macedonia, Ministry of Labour and Social Policy, Skopje, August 2012. Available at: http://www.mtsp.gov.mk/WBStorage/Files/nsvrab.pdf. [Accessed on: 18 July 2013].

78 79


2012-2015 National Strategy on Equality and Non-Discrimination on the Grounds of Ethnicity, Age, Mental/Physical Disability and Sex. adopted by the Government of the Republic of Macedonia in May 2012. Available at: <http://www.mtsp.gov.mk/?ItemID=BD66FCC3A7FBCB47AB9150CB-FECD2C96>. [Accessed on: 18 July 2013].

2010-2018 National Strategy on Equal Rights of Persons with Disabilities (revised version), Min-istry of Labour and Social Policy, 2009. Available at: http://www.mtsp.gov.mk. [Accessed on: 18 July 2013].

2010-2020 National Strategy on Reduction of Poverty and Social Exclusion in the Repub-lic of Macedonia, Ministry of Labour and Social policy. Available at: <http://www.mtsp.gov.mk/?ItemID=BD 66FCC3A7FBCB47AB9150 CBFECD2C96>. [Accessed on: 18 July 2013].

National Strategy on Appropriate and Equitable Representation, Government of the Republic of Macedonia, 2007. [Accessed on: 21 September 2013].

Operational Plan for the implementation of the 2012-2015 National Strategy on Equality and Non-Discrimination on the Grounds of Ethnicity, Age, Mental/Physical Disability and Sex adopted by the Government of the Republic of Macedonia in January 2013. Available at: <http://www.mtsp.gov.mk/?ItemID=BD66FCC3A7FBCB47A B9150CBFECD2C96>. [Accessed on: 18 July 2013].

Petrovska Beshka V., Najchevska M., Research Report: Barometer for Equal Opportunities, Mace-donian Centre for International Cooperation, 2209. Available at: <http://www.mcms.org.mk>. [Ac-cessed on: 5 May 2013].

Rulebook on vocational training, checks, licensing and authorisations of aircraft’s pilots, Official gazette of RM, No. 44/08. Available at: <http://www.slvesnik.com.mk>. [Accessed on 20 Septem-ber 2013].

Charter of Fundamental Rights of the European Union, Solemn Proclamation by the President of the European Parliament, Solemn Proclamation by the President of the European Parliament, the European Commission and the Council of Ministers, Nice, OJ C 364/1, from 7 December 2000, article 21. Available at: <http://www.europarl.europa.eu/charter/pdf/text_en.pdf>. [Accessed on: 10 May 2013].

Poposka Z., Employment of Persons with Disability in the Republic of Macedonia (legal analysis), Polio Plus ‒ Movement Against Disability, Skopje, 2013.

Poposka Z., Disability Discrimination in the International Human Rights Law, Ss Cyril and Methodius University ‒ Skopje, Faculty of Law “Justinian I”, 2012.

Rulebook on assessing specific needs of persons with physical or mental development difficulties, Official Gazette of RM, No. 30/2000, from 19 April 2000.

Rulebook on vocational training for disabled persons, Official Gazette of RM, No. 54/2004, from 13 August 2004.

Overview of the unemployed disabled persons according to the type of disability, level of educa-tion and age structure, status on 31 December 2010, Employment Service Agency of the Republic of Macedonia. Available at: <http://www.avrm.gov.mk> [Accessed on: 10 July 2013].

Overview of the work of the Constitutional Court of the Republic of Macedonia in 2012, Skopje, February 2013. Available at: <http://www.ustavensud.mk/domino/WEBSUD.nsf>. [Accessed on: 10 July 2013].

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

66th session, 23 June 1980. Available at: <http://www.ilo.org/dyn/normlex/en/f?p=NORMLEX-PUB:12100:0::NO::P12100_ILO_CODE:R162>. [Accessed on 1 October 2013].

Handbook on the European non-discrimination law, EU Agency for Fundamental Rights and the Council of Europe, Skopje, 2010.

Assessment of the implementation of the 2007-2012 National Plan for Gender Equality, Ministry of Labour and Social Policy, 2012.

2012 Regular annual report of the Commission for Protection against Discrimination, Commission for Protection against Discrimination, Skopje, 2013. Available at: <http://www.kzd.mk> [Accessed on: 10 July 2013].

Schiek D., Waddington L., Bell M., (eds.), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law, Hart Publishing, Oxford and Portland, Oregon, 2007.

Simoska E., Gaber N., Jovevska A., Atanasov P., Babunski K., Research Project: How Inclusive is the Macedonian Society, Foundation Open Society Institute ‒ Macedonia, 2008. Available at: <http://www.soros.org.mk> [Accessed on: 5 May 2013].

Situation and challenges ‒ Analysis of the employment of persons with disability, Ombudsman of the Republic of Macedonia, Skopje, 2012. Available at: <http://www.ombudsman.mk/ > [Accessed on: 20 September 2013].

Statistical review ‒ Social welfare of children, youth and adults persons, State Statistical Office, No. 2.4.11.16, 701, from October 2011, pp. 28-29, available at: <http://www.stat.gov.mk> [Accessed on: 15 July 2013].

2013-2020 Strategy on Gender Equality, Ministry of Labour and Social Policy, 2013. Available at: <http://www.mtsp.gov.mk/?ItemID=BD66FCC3A7FBCB47AB9150CBFECD2C96>. [Accessed on: 21 October 2013].

The European Network of Legal Experts in the Non-Discrimination Filed, Developing Anti dis-crimination Law in Europe, November 2010.

Tridimas T., The General Principles of EU Law, Oxford University Press, 2000.

UN Convention on the Rights of Persons with Disabilities, UN Doc. A/RES/61/611, from 13 De-cember 2006. Available at: <http://www.un.org/esa/socdev/enable/rights/convtexte.htm>. [Accessed on: 16 July 2013].

Constitutional Court of the Republic of Macedonia, Decision No. 118/2003-0-0, from 16 June 2003. Available at: <http://www.ustavensud.mk>. [Accessed on 1 October 2013].

The Constitution of the Republic of Macedonia, Official Gazette of RM, No. 52/1991, from 22 November 1991. Available at: <http://www.slvesnik.com.mk>. [Accessed on: 10 July 2013].

Fredman S., Double Trouble: Multiple Discrimination and EU Law, The European Network of Legal Experts in the Non-Discrimination Filed, European Anti discrimination Law Review Issue No.2, October 2005.

Frckovski, L.D., International Human Rights Law, Magor, Skopje, 2005.

Hannett S., Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination, 23 OJLS 68, 2003.

80 81

Discrimination Practices in Employment

Documents

Transcript of Discrimination Practices in Employment