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The law on anti-discrimination of women at work is a very broad and complicated field invloving various law branches such as consitutional law, labor law, administrative and eve criminal law. It is difficult for the author to carry out a comprehensive and profound research only this piece of law. However, due to the importatance and applicability of this topic for Vietnam nowaday, and given to the encouragement and support of my supevisors, I have made and my graduation thesis on the topic in hope to contribute, as much as possible, to solving issues of antidiscrimination against women at work in Vietnam. It is worthy noticing that studies and application in context of Vietnam of the legistaltive experiences of Sweden, the country that has achieved great success in this area of law, will be of big interest in
Vietnam.
I would like to give my deep thanks to professor Birgitta Nyström, Lund University and doctor Phung Nguyen Kim, Deputy-Dean of the Department of Post-Graduation of Hanoi Law Univversity, for their kind and invaluable guidances and remarks made throughout my studies on the topic. I also want to thank the librarians of Lund
University and Hanoi Law University for helping me to collect the necessary materials, my colleagues and friends for giving me thoughtful comments on the contents of the thesis and inspiring to perfrom this research.
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Preface and Acknowledgements .................................................................................. 1
Table of Content ........................................................................................................... 2
Abbreviations ............................................................................................................... 3
Executive Summary ..................................................................................................... 4
1. Introduction .................................................................................................... 6
2. Comparison of Swedish and Vietnamese legislation on anti-discrimination of women at work ........................................................................................ 10
2.1 Defining the concepts ................................................................................. 10
2.1.1 Introductory remark .................................................................................... 10
2.1.2 The concept of equality ............................................................................... 11
2.1.3 The concept of discrimination .................................................................... 13
2.1.4 The concept of anti-discrimination ............................................................. 16
2.2 Development of the Swedish on anti-discrimination law regarding women at work ......................................................................................................... 21
2.2.1. The period before 1995 ............................................................................... 21
2.2.2 The period from 1995 until present ............................................................ 25
2.3 The fundamental issues of the current Swedish anti-discrimination law regarding women at work in comparison with those of Vietnam ............... 29
2.3.1. Anti-discrimination of women at work ........................................................ 29
2.3.2. The current legislation of Sweden and Vietnam ......................................... 31
3. Improving Vietnamese legislation in the light of Swedish experiences ...... 48
3.1
3.2
Some Swedish experiences of anti-discrimination legislation regarding women at work ............................................................................................. 48
The demand to improve for Vietnamese anti-discrimination law regarding women at work ............................................................................................ 49
3.3 Some proposals for improving Vietnamese legislation .............................. 51
3.3.1 Some proposals on the content of legal provisions ...................................... 52
3.3.2 The improvement alternative ...................................................................... 54
4. Conclusion ................................................................................................... 55
Table of Statutes and other Legal Instruments ........................................................... 57
Bibliography ............................................................................................................... 59
Art.
CEDAW
CEEP
EC
EU
Article
The Convention on Elimination of Discrimination Against
Women
Centre European des Enterprises Publiques
Euopean Community
European Union
2

ILO
JämO
TUC
UN
UNICE
International Labour Organization
The Swedish Equal Opportunities Ombudsman
Trade Union Congress
United Nations
Union of Industrial and Employers Confederation of
Europe
3

Law on anti-discrimination of women at work is a necessary instrument for ensuring equality of women in work, and hence their equality in the society and in famili life.
Swedish and Vietnamese Governments have adopted many laws and regulations on this matter. These law and regulations produce good effect in handling the issues relating to discrimination against women at work. However, the laws and regulations, the mechanism of implemetation and supervision in Sweden and in
Vietnam differ from each other in many aspects due to various political, socioeconomic factors. Swedish legislation on anti-discrimination of women at work is even though has been established later than that in some other countries in European
Union, for instance, United Kingdom, France, but compared to Vietnam it is more concrete and effective. Issues of discrimination against women at work are governed in specific laws rather concentrated in the Labour Code as in case of Vietnam. It is worthy noting that Vietnam has achieved big steps forward in advancing its law on anti-discrimination against women at work. However, laws and regulation of
Vietnam on this issue are still general and vagues. The implementation of provisions on discrimination against women at work is not so effective due to various reasons among which the complexity of law system, the effectiveness of enforcement bodies should be listed firstly. Vietnam law system is characterized with diversity of legal normative acts and delegation mechanism of implementation. More concretely, when a law is adopted, its implementation depends on a guidance decree of the
Government since many important issues of the subject-matter of the law the
National Assembly delegates to the Government to provide for. In its turn, the
Government often delegates to the Minister and Chairmen of the People’s
Committees to guide implementation of its decree. So, when adopted, the provisions of a law that already effective may not be applied soon after.
Sweden in country that has been rated by many international organizations and experts as the country with high level of enssuring equaliy of women, including the effective protection of woman-laborer at work. Not doubt this echievement has grear contribution of law on anti-discrimination of women at work . Which are good points or weaknesses in Swedish legislation on anti-discrimination of women at work?
Analysis of these these points is very usefull for Vietnam om improving its law on this issue. The purpose of this research is to explore the legislative experiences of
Sweden in effective ensuring equality of women at work in particular and ithe the society in general, and possibility of their application in context of Vietnam. The results of the research on this issue has big value nowaday since Vietnam is going to
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improve the legal system to more effectively ensure equality, democratic rights and freedoms of the people according to the Resolution No 48/NQ-TW on Strategy on building up and improvement of the legal system adopted on May 24, 2005.
Furthermore, the National Assembly has recently adopted law on Gender Equality and is going to adopt new Labor Code. Implementation of Law on gender Equality and prepartion of New Labor Code will touch upon a lot of issue relating to antidiscrimination of woment at work. For the above-mentioned reasons the choice of topic “
Swedish legislation on anti-discrimination of women at work” will bring some value for Vietnamese law-drafters.
The research, due to its scope focuses mainly on Swedish and Vietnamese regulations on anti-discrimination of women at work. Thus, the general legislative regulations on anti-discrimination are not the subject and scope of this thesis. They may be cited to emphasize the conclusions and findings of the research.
On basis of the designated purpose and study scope as indicated above, the author uses comparative and analysis and the main research methods. These methods are approrirate in exploring and showing the similarities and differences in regulations of
Sweden and Vietnam on issues relatiing to discrimination of women at work as well as in proposing suggestion to improve the law and regulations of Vietnam on basis of experiences gained from Sweden case and the weaknesses and limitations explored in case of Vietnam. In addition, other methods are also used appropriately in dealing with each concrete issue.
The structure of the thesis consists of Introduction Part, Conclusion Part, and two chapters. In Chapter 1, the author focuses on two major issue: firstly, concept of equality, discrimination, anti-discrimination with purpose to explore the nature of the subject-matter, its reflections in theoretical aspect; and analysis and evaluation of the current legal provisions of Sweden and Vietnam on anti-discrimination of women at work in comparative perspective with purpose to deeper understand the actual state of the law of the two countries on anti-discrimination of women at work. In Chapter
2, the author analyzes some characteristics of law and regulations of Sweden and
Vietnam on anti-discrimination of women at work, weaknesses and limitations in this area of law. On basis of the findings, the author proposes some suggestions to improve Vietnamese legislation on anti-discrimination of women at work.
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Woman-laborers are an important part of the labour force in any country. Womanlaborers participate almost in all industries as employees. However, woman-laborers faced in the past and now being faced with various kinds of discriminations on ground of sex. The prejudice and under-evaluation of women’s role in the family, at work and the social life exist in any community. Because of this factor, women are easily exposed to different forms of discrimination. In fact, employers always would recruit man-workers rather than woman-workers even though they adequate health, qualification and skills. The man-workers have more employement opportunities than woman-workers and hence may have more voice in the family life and in the society. This state of affairs exists everywhere in the world, even in th developed countries. Discrimination against women is damaging socio-economic development in any country. Therefore, the protections of women from any discrimination and ensuring their equality are the precondition for development of any community. The
Sweden and Vietnam are not an exception. It is not a surprise that Sweden and
Vietnam have paid great attention to improve the legal framework for protection of women from disrimination at work as well as in other areas of the social life. In
Sweden, law on anti-discrimination consists of separate lgal acts, such as the Equal
Opportunities Act, or the Parental Leave Act and etc. In Vietnam, issues relating to protection of women from discrimination at work are governed by the Labour Code, especially the part titled “The particular provisions for working women”
1
and some decrees of the Governments.
This thesis will examine the provisions of Vietnamese and Swedish law on protection of women from discrimination at work and supervisory mechanism for ensuring the equality between men and women at work .
The aim of this thesis is to analize the provisions on anti-discrimination of women at work in Sweden and Vietnam in comparative approach for finding out their good points and weaknesses that helped to formulate some proposal for improving the
Labour law of Vietnam governing this issue.
1 Chapter X, the Labour Code of the Socialist Republic of Vietnam.
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Equality between men and women workers is a basis legal principle of the Labour law. It is stated and carried our differently in States. Within the graduation thesis, it is impossible to cover the legislation of many States on this issue. Therefore, as the case study, the author tries to analyze and compare the legal systems of the two countries namely Sweden and Vietnam.
This thesis aims at analysing and comparing the provisions Sweden and Vietnam on anti-discrimination of women at work for finding out some expereinces and lessons that may be applicable to improve Vietnamese law on this issue. Following this goal, the thesis narrows itself mainly with labor law of Sweden and Vietnam. However, since discrimination against women at work relates to many fields, the author also referer to some other law areas that directly impact working women’s rights and interests.
The legal provisions regarding to anti-discrimination of women at work which are examined in this thesis are:
Declaration in the Article 16 of the Instrument of Government. This is a fundamental act on protection of citizens from the unfavourable treatment on ground of gender.
Equal Opportunities Act. This Act was enacted in 1979 and was replaced by the
1991 Act. It contains prohibitions against discrimination, active measures to be taken by the employer, and enforcement mechanisms and procedures.
The Parental leave Act also is a legal instrument pertaining to anti-discrimination of women at work. It regulates parental leave issue which is one of working conditions to ensure equality between the mother-employee and father-employee.
Protection of women from discrimination at work in Vietnam is governed directly in ten articles in the Labor Code called ‘
The Separate Provisions on Female
Employees
’. The Code was adopted in 1994 with some subsequent amendments.
Implementation of these articles is guided in the Decree No. 23/CP of the
Government and the Circular No. 03-LDTBXH/TT of the Ministry of Labour,
Invalids and Social Welfare. These legal acts are the major law that the thesis analyzes.
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The 2006 Law on Gender Equality is other important law source for protection of women from discrimination. This Law defines the concept of gender equality
(Article 5) deals with equality between men and women in the labour area (Article
13). The provisions of the Law are also analyzed in the thesis.
To some extend, various provisions of the 1998 Ordinance of Civil Servants
Ordinance of 1998 are also examined in this thesis.
In order to achieve the above-mentiond purpose as mentioned and find out some recommendations applicable for improvement of the Vietnamese Labour Law on anti-discrimination of women, the author uses different methods depending on the nature of each issue to be explored an analyzed. The following methods are used in the thesis.
The comparative and analytic study of legal provisions are the main methods used in this thesis. These methods help to find out the similarities and differences between two legal systems as Sweden and Vietnam.
Synthetic and evaluation method are used in the thesis for pointing out good points and weaknesses of the Swedish and Vietnamese law on protection of women from discrimination at work. They are also used to formulation some suggestions for improvement of Vienamese legislation governing this issue.
In addition, the thesis also uses historical and statistical method for and exploring development of law in Sweden and Vietnam governing protection of women from discrimination at work.
The first part of this thesis focuses on introducing the subject-matter and purpose of the research. Methodology and scope limitation are discussed in this part to give more profound understanding the thesis approach.
The second part will deal with three matters. First , it discusses the concepts of equality, discrimination and anti-discrimination. These concepts are analyzed in context of the law of the two States and a some relating International Conventions.
The next part discusses the development of Swedish laws on anti-discrimination of women at work. This development is divided in the two following periods, namely before and after 1995 when Sweden became a Member European Union. Last part focuses on the current provisions of Swedish law and Vietnamese law on the issue in
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тексту, который должен здесь отображаться. comparative approach, and then identifies the good points and weakness of the two legal systems in regard of protection of women from discrimination at work.
The third part evaluates the good points and weaknesses of the Swedish laws with arguments as what lessons and experiences are appropriate for Vietnam. In this part, some recommendations are made to reform the Vietnamese legislation on antidiscrimination of women at work.
Finally, in the conclusion part, the author summarizes different points of view on the core issues of the thesis. Conclusions in this part are that the Swedish legislation on anti-discrimination of women at work has both the good points and weaknesses.
All they are the experienced lessons for Vietnamese legislation on antidiscrimination of women at work for application or avoiding.
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Anti-discrimination at work ensures equality between men and women at the workplace in order to achieve economic equality between the sexes in employment generally. All participants in the labour relation tried to achieve equality and liquidate any discrimination between men and women in employment by way of legal regulations and state supervision. If working women are not discriminated against, they will gain equality both in the mind and in practice. They will gradually reject the social prejudices and the ingrained traditional ideas that the care of children and the family are women’s responsibility; or that women are not suited to social labour, etc. If working women have equality, men will share with them the responsibility of housework and child care. Moreover, they will be free join in any social activity and have full opportunities to affirm their ability. Further, once working women have equality where employment and income are concerned, they will not be mere dependents of others. Working women have the right to fully paid work so as to improve their needs and conditions as well as their family life.
Active anti-discrimination activities will bring everyone equality and justice in so it is necessary in any society. It will impact favourably on every area of society, and will, for example, balance the relations between employees and employers in employment and ensure equality between the sexes in the distribution of benefits.
Anti-discrimination principles regarding working women were first stated in the
1948 Universal Declaration of Human Rights,
2
to prevent actions, behaviours and rules which were contrary to human rights. Then came the conventions of the
International Labour Organization, such as the Convention concerning Equal remuneration for Men and Women Workers for Work of Equal Value, 1951
(No.100); and the Convention concerning Discrimination in respect of Employment and Occupation, 1958 (No. 111).
2 Article 1, Universal Declaration of Human rights of 1948.
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When talking about anti-discrimination at work, we are talking about measures to ensure equality and justice between men and women workers. The measures prevent there being unfavourable employer actions against women in comparison to what men receive. In other words, the aim is to ensure equality and prohibit discrimination between men and women at work.
As mentioned above, anti-discrimination of women at work is carried out to ensure equality between sexes, to prohibit employer’s discrimination against working women. Thus, the appearance of concepts ‘equality’, ‘discrimination’ and ‘antidiscrimination’ is closely related to concept of anti-discrimination of women at work. So these concepts will be dealt with in the most general in order to form the argument base for examination of anti-discrimination of women at work. However, in the interests of this thesis, the author will only deal with these concepts in so far as they relate to the gender element.
Equality is the corner-stone of every democratic society which aspires to social justice and human rights. As we have seen, the Universal Declaration of Human
Rights stated that “All human beings are born free and equal in dignity and rights”; 3 following that, all people should be free and equal in dignity and rights, with a disregard of whether they are men or women. Equality is justice in the bestowal of benefits, rights and obligations of everyone; and between persons of the same sex and different sexes in all fields whether economic, political, social-cultural, labour or familial. The formal principle of equality derived from Aristotle’s statement that
“ things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness
”.
4
According to his definition, equality implies that like cases should be treated alike and unlike cases unlike in proportion to their unlikeness. However, the principle “ things that are alike should be treated alike ” can lead to inequality where, for example, if a factory rules that all employees are worked in an area with alike things as the light, safety working clothing, and toiletroom, etc, these may be inequality if that things only are one kind for male sex, means that the safety working clothing or the toiletroom are not made appropriate to womens’ special features. In contrast with formal Aristotelian equality, substantive equality is founded on the principle that all human beings are of
3 Art. 1, The Universal Declaration of Human Rights, 1948.
4 Khurana, J., (2007), p.9.
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тексту, который должен здесь отображаться. equal worth and are possessed of the same innate human dignity, which the law must uphold and protect, not just in form but in substance.
5
According to the Universal Declaration of Human Right 1948, equality is the foundation of freedom, justice and peace in the world, and equal rights are inalienable rights of all members of the human family.
6
Thus, equality is the most basic right and cannot be absent in any area of social-life. This means that mankind will have not justice, if it does not consider equality as the corner-stone of every aspect of social life.
Equality of rights for women is a basic principle of the United Nations.
7
The
Preamble of the Charter of the United Nations sets as a basic goal "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women".
8
Furthermore, Article 1 of the Charter proclaims that one of the purposes of the United Nations is to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all people without distinction as to race, sex, language or religion.
9
Equality between men and women is a basic legal principle as well as a basic human right.
10
The European Court has declared that the equality is a fundamental principle of
Community Law.
11 This means that the legislation aiming at the protection of justice in society in general, and the protection of individual benefits in particular will not achieve its end, if it is not based on the equality principle. Because human rights in general, and those of women as against men in particular, are central to almost every issue arising in society, the equality principle is of the utmost importance.
Equality in employment, I think entails that both men and women enjoy equal rights and benefits and undergo equal obligations at work; so a woman must be on the same wage scale as a man who works at the same job for the same employer. At the workplace, workers are not discriminated against when seeking to be recruited as whether on the grounds of age, gender or other. All have the same general wage scale for equal work, as well as the same social insurance, working conditions and rest
5 Khurana, J., (2007), p. 5.
6 Par. 1 of Preamble, The Universal Declaration of Human Rights, 1948.
7 Stjemrup, K., (2006), p. 12.
8 Par. 2 of the Preamble, Charter of the U.N.
9 Art. 1, par. 3, Charter of the U.N.
10 Stjemrup, K., (2006), p. 4.
11 Prechal, S. and Burrows, N., (1990), p. 2.
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тексту, который должен здесь отображаться. time. In addition, the right to promotion, appointment or advanced training cannot involve discrimination on the grounds of sex. Equality in employment encompasses equal payment and equal opportunities between men and women. Equal payment for equal work means that people performing the same job or likes jobs must be paid the same wage, regardless of their gender.
12
Equal opportunities mean that all employees have the right access to employment, right of promotion, of appointment or advanced training are not discriminated on the ground of sex. The employer cannot treat an employee unfavourably because of his or her sex. If a workplace lacks equality there may be disputes or strikes which impact on its functionings.
Equality at work aims to provide equal treatment for men and women. It helps working women become persons who act on their own initiative and can thus improve their family life. On the other hand, the working women will also escape from the traditional ideas that they are dependt persons. Equality is thus necessary at work and everyone needs to respect it and treat everyone equally.
Equality has a vital role in the development and existence of an organization, or any unit of society, because it is a basic legal principle, a basic right and, as the
English philosopher John Rawls said “justice is the first virtue of social institutions”.
13 The Equal Opportunities Ombudsman of Sweden states that gender equality is a state where men and women enjoy the same opportunities, rights and obligations in all spheres of life.
14
In short, equality has an important role as a measure in any area of life. Equality makes humans better to each other, and more friendly. In the labour area, equality makes employees aware that they are enjoy benefits and rights in proportion to their contribution. Employers basing themselves on equality will distribute employment without reasonably any bias or sex-discrimination.
As this paper focuses on female inequality, the term discrimination will predominantly be used with regard to gender. Discrimination is the application to the same persons, or groups of different terms or conditions or, by contrast, the application to different people or groups of the same condition. However, not every differentiation constitutes discrimination.
15
Discrimination arises in all fields of the
12 Cotter, A-M. M., (2004), p. 34.
13 Gardner, J., (1996), p. 2.
14 Gender equality in Sweden.
15 Tomasevski, K., p. 44.
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тексту, который должен здесь отображаться. economy and may be based on various reasons such as religion, race, color, sex and disability, marital status or other causes. At the moment, discrimination on grounds of sex is a matter important to society concerned as it is with differences in the treatment of men and women with respect to opportunties, rights and obligations.
Discrimination occurs in various forms in everyday life. The European Court of
Justice has ruled that “discrimination can arise only through the application of different rules to relevantly similar situations or the application of the same rules to different situations”.
16
The Women’s Convention
17
(CEDAW) set forth a definition of discrimination against women as follows:
“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
18
As defined by the ILO, any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity and treatment in employment or occupation is discriminatory.
19
Alongside racial discrimination, gender discrimination can be seen as one major form of discrimination which is of great concern throughout the world.
Gender disscrimination in the labour area involves the unequal treatment of men and women, affecting remuneration and access to employment.
20
This matter thus need to be regulated by laws, acts or legal documents, that depend on each state.
Swedish legislation defines discrimination in the Equal Opportunities Act 1991 as happening when employers places a job seeker or an employee at a disadvantage by treating that person less favourably than someone in a similar position or applies a provision, a criterion or a practice that appears to be neutral but which in practice is particularly disadvantageous to persons of one sex or the other.
Vietnamese legislation has not defined the concept of discrimination clearly, but the provisions regarding discriminatory prohibition are stipulated in concrete cases in
16 Strand, M., (2006), p. 11.
17 Convention on the Elimination of all Forms of Discrimination against Women by the
United Nations General Assembly of 18 December 1979.
18 Article 1, CEDAW, (1951).
19 Article 1, ILO Convention No. 111, 1958.
20 Cotter, A-M.M., (2004), p. 1.
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10 articles of Labour Code. For instance, employers are strictly prohibited from conduct which is discriminatory towards a female employee or conduct which degrades the dignity and honour of a female employee. An employer must implement the principle of equality of males and females in respect of recruitment, utilization, wage increases, and wages;
21
and an employer is prohibited from dismissing a female employee or unilaterally terminating the labour contract of a female employee for reason of marriage, pregnancy, taking maternity leave
, or raising a child under twelve
(12) months old , except where the enterprise ceases its operation.
22
Discrimination occurs in various forms in everyday life. Discrimination on ground of sex has two forms. The first is direct discriminattion, which means that a person or a group is the victim of unfavourable treatment by an employer and that unfavourable treatment is related to personal elements as race, religion or sex. Direct discrimination arises when a person intentionally imposes a decision or restriction on a person or group such that the person or group cannot implement their legal rights in the same was as can other persons or groups. As some authors comment that, direct discrimination arises where a forbidden ground of discrimination is used in order to apply differential treatment where there is no justifiabe use of that criterion.
23
Direct discrimination occurs when men and women are treated differently, such as in terms of pay, solely on the basis of their gender.
24 Direct discrimination includes discrimination due to prejudice.
25
For example, an employer may think that if persons go to another country when they do not know the local language, they will not work well or will have much difficulty at work in contrast to a native speaker.
The ILO, EU and Swedish Labour Law all make a distinction between direct and indirect discrimination. The Equal Opportunities Act of Sweden defined the concept of direct discrimination in Article 15 and this has been seen as imposing a ban on sex discrimination; the European definition is the same as this:
“Employers may not place a job seeker or an employee at a disadvantage by treating her or him less favourably than they treat, have treated or would have treated someone else in a similar position, if such unfavourable treatment is gender-related”.
The second form is indirect discrimination, which refers to the application of a provision, criterion or practice that appears to be neutral but which in fact is
21 Par. 1, Art. 111, Vietnamese Labour Code, (1994).
22 Par. 3, Art. 111, Vietnamese Labour Code, (1994).
23 Prechal, S. and Burrows, N., (1990), p. 8.
24 Cotter, A-M.M., (2004), p. 248.
25 Legal Perspective on Equal Treatment and Non-Discrimination, P.40.
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тексту, который должен здесь отображаться. unfavourable or damaging to a person or a group. For instance, if the employer does not recruit workers who do not satisfy a minimum health requirement, that may be discriminatory against female workers because women are more easily affected by health issues. Indirect discrimination occurs when men and women are treated differently because apparently neutral provision, criterion or practice determining recruitment, pay, working conditions, dismissal and social security in practice disadvantages a substantially higher proportion of the members of one gender.
26
According to the ILO, indirect discrimination occurs if intrinsically neutral rules or laws negatively affect certain groups, e.g. female workers. The Sex Discrimination
Act of 1975 of Britain defined indirect discrimination as applying to a woman a requirement or condition equally as to a man but which is such that the proportion of women (or men) who can comply with it is considerably smaller than the proportion of men who can comply with, and it is to her detriment because she cannot comply with it.
27
The Equal Opportunities Act of Sweden covers indirect discrimination as part of its ban on sex discrimination:
“Employers may not place a job seeker or an employee at a disadvantage by applying a provision, a criterion or a practice that appears to be neutral but which in practice is particularly disadvantageous to persons of one sex or the other, unless the provision, criterion or practice can be justified by a legitimate aim and the means are appropriate and necessary in pursuit of such an aim”.
Thus, indirect discrimination arises where a criterion other than a forbidden one is used to apply differential treatment and the use of this other criterion leads to the same result.
28
In summary, discrimination is a concept which may be considered by judges, scholars, and others when determining whether there has been a violation of peoples’ rights. In general, discrimination involves unfair and unfavourable acts or treatment of an individual or group of persons, most likely causing. damage to them. Whether involving direct or indirect discrimination, all such acts violate human rights and stop mankind trying to achieve a civilized, just and stable society.
Anti-discrimination is the prohibition of any distinction, exclusion or restriction based on any of the particular characteristics of a person or a group with a view to
26 Cotter, A-M.M., (2004), p. 248.
27 Anderman, S. D., (2002), p. 256.
28 Prechal, S. and Burrows, N., (1990), p. 8.
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тексту, который должен здесь отображаться. achieving equality for persons or groups that have the same characteristic. Antidiscrimination on the ground of sex is the prohibition of any distinction, exclusion or restriction made on the basis of sex. The prohibition of discrimination does not imply that no differentiation should be made between people, but that such differentiation should be on the basic of objective and reasonable criteria, not on the ground of sex, ethnic, race, colour, etc. Anti-discrimination, whether on the ground of sex or other grounds, must be exercised comprehensively. It is a continuous process and must track socio-economic development in order to foster a civilized development of society.
Anti-discrimination is a fundamental principle which is applied to everyone and has become a recognized part of international law. The United Nations Charter contains provisions establishing an effective system for the protection of human rights.
29
The Universal Declaration of Human Rights elaborates the United Nations
Charter, it also emphasises protection of human rights in Articles 1, 2, 4 and 7. Just beneath the United Nations Charter and Universal Declaration of Human Rights,
International Covenants with more detailed provisions such as the Covenant on Civil and Political Rights which contains the principle of anti-discrimination at Article 26.
The Convention on the Elimination of All forms of Discrimination Against Women and the European Convention for the protection of Human Rights and Fundamental
Freedoms also contain it.
Anti-discrimination is seen as prevention of any action which denies to individuals or groups of people the equality of treatment which they may wish.
Therefore, anti-discrimination must be exercised comprehensively as discrimination can appear in any area of society such as the economy, culture, labour or family, etc.
These areas have mutually interlocking effects and assistance, thus, antidiscrimination should appear continuously in every area and be put under the regulation of legislation.
As mentioned in prior part, discrimination against women at work is the working women are treated unfavourable lead to less advantage than men in the same situation and under the management of an employer, or a social partner or, a statute.
This means that, due to the ground of sex, the working women are restricted some rights when they joint into labour market as recruitment, payment, social security, promotion, and parental leave. Therefore, these restrictions which are considered as the detriment to women must be prohibited or forbidden. In addition, the women’s rights and interests are protected as the same men.
29 Weiwei, L., p.5.
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Anti-discrimination is a fundamental principle which is applied to everyone and became a recognized part of international law.
30
The United Nations Charter
31 contains provisions establishing an effective system for the protection of human rights.
32
The Universal Declaration of Human Rights
33
elaborates the United Nations
Charter, it also emphasises protection of human rights by the provisions as Articles 1,
2, 4 and 7. Just beneath the United Nations Charter and Universal Declaration of
Human Rights, the International Covenants which detailed provisions such as the
Covenant on Civil and Political Rights
34
also contains the principle of antidiscrimination at the Article 26: all individuals are equal before the law and equally entitled to protection by the law against any discrimination. Further, the Convention on the Elimination of All forms of Discrimination Against Women, and the European
Convention for the protection of Human Rights and Fundamental Freedoms also contain this principle.
There are many the legal instruments of various levels were set forth the measures in order to protect women in employment. The equality in employment is protected under the Universal Declaration of Human Rights:
35
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
The equal rights in employment without regards to gender are ensured under the
Article 55 of the United Nations Charter. It shall promote full employment, universal
30 Weiwei, L., p.5.
31 Charter of the United Nations, signed at San Francisco on 26 June 1945.
32 Weiwei, L., p.5.
33 Universal Declaration of Human Rights, adopted and proclaimed by the United Nations
General Assembly Resolution 217A (III) of 10 December 1948.
34 International Covenant on Civil and Political Rights by the United Nations General
Assembly in resolution 2200A (XXI) on 16 December 1996.
35 Art. 23, the Universal Declaration of Human Rights of 1948.
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тексту, который должен здесь отображаться. respect for, and observance of, human rights and fundamental freedoms for all without distinction as to sex.
According to the Equal Remuneration Convention (ILO No.100) of 1951, the term ‘remuneration’ is defined in Article 1 as the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker’s employment.
36 Further, the term ‘equal remuneration for men and women workers for work of equal value’ is defined as rates of remuneration established without discrimination based on sex.
37
This Convention promotes equal remuneration for men and women under the Article 2:
1. Each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.
2. This principle may be applied by means of:
(a) National laws or regulations;
(b) Legally established or recognised machinery for wage determination;
(c) Collective agreements between employers and workers; or
(d) A combination of these various means.
The equal opportunity and equal treatment in employment are guaranteed under the Article 2 of the Discrimination Employment and Occupation Convention (ILO
No.111) of 1958, which states that each Member for which this Convention is in force undertakes to declare and pursue a national policy degsined to promote, by method appropriate to national condition and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
38
In addition, there are many other legal instruments are also considered as the measures which may guarantee antidiscrimination of women at work. Those as the
International Covenant on Civil and Political Rights protects the equal rights of women and men by the Article 2 or; the Convention on the Elimination of all Forms of Discrimination against Women guarantees the employment rights for women in terms of access to employment and equal pay as well as issue of maternity and
36 Cotter, A-M.M., (2004), p. 45.
37 Cotter, A-M. M., (2004), p. 46.
38 Cotter, A-M. M., (2004), p. 47.
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тексту, который должен здесь отображаться. marriage women by the Article 11 or; the European Social Charter
39
guarantees the right to a fair remuneration and equal pay by the Article 4 and guarantees the right to equal opportunities and equal treatment in employment and occupation without discrimination on the ground of gender by the Article 20.
Especially, the European Union has a series of directives aiming at ensuring equal opportunity and treatment for men and women.
40 The Equal Pay Directive 41 establishes the principle of equal pay reffer to work which is the same or which is judged to be of equal value, and requires Member States to introduce appropriate legal mechanisms for the redress of all discrimination on the grounds of gender with regard to all aspects and conditions of remuneration. The Equal Treatment
Directive
42
provides that there should be no discrimination on grounds of gender, either direct or indirect, nor by reference to marital or family status, in access to employment, training, working conditions, promotion or dismissal, but allows exceptions for occupational activities where a worker’s sex is a determining factor.
The Burden of Proof Directive
43
shall be to ensure that the measures taken by the
Member States to implement the principle of equal treatment are made more effective in order to enable all persons who consider themselves wronged because the principle of equal treatment has not been applied to them to have their rights asserted by judicial process after posible recourse to other competent bodies.
44
Further, the Parental Leave Directive
45
provides that all parents of children up to a given age to be defined by Member States, to be given up to three months’ unpaid parental leave, and for individuals to take unpaid time off when a dependant is ill or injured.
39 European Social Charter by the Council of Europe of October 18, 1961 and revised on May
3, 1996 and came into force on July 1, 1999.
40 Cotter, A-M. M., (2004), p. 258.
41 Council Directive 75/117/EEC of February 10, 1975 on the approximation of the Laws of the Member States relating to the application of the principle of equal pay for women and men.
42 Council Directive 76/207/EEC of February 9, 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
43 Council Directive 97/80/EC on 15 December 1997 on the burden of proof in cases of discrimination based on sex.
44 Article 1, Directive 97/80/EC.
45 Council Directive 96/34/EC of June 3, 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.
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Each stage or status of socio-economic development has its own characteristics.
Anti-discrimination needs to be in accordance with the stage and social institution it regulates in order to determine the type of discrimination it fosters and provide appropriate plans for anti-discrimination. Anti-discrimination must be exercised in a unified manner by way of concrete plans created by legal provisions of the State.
In summary, anti-discrimination in general is a set of measures taken to protect the human rights without discrimination on any ground as color, race, sex, religion, etc. Particularly, anti-discrimination regarding women at work is enacting statutes of various levels which aim to protect the women are enjoyed opportunities of recruitment, payment, and other working conditions the same men.
The first foundations of Swedish employment legislation with respect to women appeared at the end of the nineteenth century. However, protective legislation regarding women only began to be enacted in 1900 with the Act on Minor Children and Women Employed in Industrial Work which provided that women who have given birth to a child may not be employed in the first four weeks after the birth of the child,
46
. And this Act was then taken into a chapter in the Worker Protection Act
1912. In 1912, the Swedish Worker Protection Act came into force (herein called the
1912 Act); it extended the period of maternity leave to six weeks rather than four and also provided for two weeks off prior to the birth of a child.
47 To the revision in
1931, the 1912 Act was made a modest result: Women now had the right to a sixweek period of leave before the birth of a child without needing to demonstrate a healtth risk.
48
The Prohibition against Night Work Act was adopted in 1909. This Act prohibited the use of women in shifts of more than thirteen hours, and between the hours of
10:00 p.m. and 5:00 a.m.within certain industrial operations consisting of more than ten persons.
49
The 1939 Act
50
prohibited employers from terminating employment
46 Carlson, L., (2007), pp. 92, 98.
47 Schmidt, F. (ed.), (1978), p. 130.
48 Carlson, L., (2007), p. 104.
49 Carlson, L., (2007), p. 96.
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тексту, который должен здесь отображаться. based upon marriage or pregnancy, and thus gave opportunities for married and pregnant women to keep their jobs.
Thus Swedish legislation in that period had laws for the protection of workers in general, and working women and child labour in particular. Nevertheless, the above provisions on the protection of working women just stopped with restrictions of hard and harmful work; reductions in night work and increases in maternal leave. Pure equality between men and women in employment was not dealt with and regulated.
In other words, in Sweden, protective laws for women at work have not been such a major issue as in Great Britain and France.
51
Thus, in that period the protection of working women has limitations. For a long time, Swedish legislation has did not deal with discrimination in a general way. The legal relationship between the individual employer and employee in employment law as well as the legal relationship between employer and employee organizations in the labour law was not strongly controlled.
Matters related to employment and labour were regulated by the social partners primarily through collective agreements. Swedish legislation in that period is entrenched in a model where the State has no role to fulfill in these issues.
52
For example, it had no minimum wage legislation, the social partners retaining the right to regulate wages through collective agreements. In some respects, labour law could be characterized as relatively inactive.
In 1962, a more modern approach to legislation commences when the Riksdag and the Government of Sweden ratify two Conventions of the ILO: the Convention
No. 100concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value, and the Convention No. 111 concerning Discrimnation in respect of
Employment and Occupation.
53
In the same year, the provisions on the restriction of the use of women in employment, such as the Prohibition against Night Work Act were repealed.
54
These became a new starting point for anti-discriminatory legislation in Sweden and also revealed a change in the Government’s and the legislators’ viewpoint regarding protection of working women which dovetailed with the ILO’s aim and International trends: to create the economically independent
50 SFS 1939:171. Act on Prohibition of Notice of Termination or Dismissal because of
Marriage or Pregnancy.
51 Schmidt, F. (ed.), (1978), p. 130.
52 Carlson, L., (2007), p. 83.
53 Carlson, L., (2007), pp. 108, 110.
54 Carlson, L., (2007), pp. 111, 112.
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55
The adoption of the 1974 Constitution (replacing one of 1809) had lead to a great change regadring all legislation related to anti-discrimnation in Sweden.
Article 16 stated that:
“No act of law or other provision may imply the unfavourable treatment of a citizen on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other analogous official duties”.
The constitution is the legal document with the highest authority in the Swedish legal system. The Government of Sweden has thus indicated very strongly that there is to be no unfavourable treatment of any citizen on grounds of gender showing a commitment to anti-discrimination for every citizen and, in particular, for women who have long been disadvantaged in comparison with men. This is the new startingpoint for anti-discrimination legisation regarding women.
Based on the new Constitution, the provision which prohibited women working in mines and quarries was repealed. In 1976, the Equality Committee was established with the task of objectively and without preconceived notions investigating and drafting legislation against sex discrimination. There was then considerable discussion on the whole issue of discrimination as employers tend to consider any prohibition against discrimination as limiting their right to freely hire. After this
Committee submitted its reports in 1978, the Government of Sweden set out its first
Bill on the prohibition of discrimination, which protected the individual worker from unfavourable treatment which discriminated between men and women at the workplace. However, until 1979, this Bill (the 1979 Equal Treatment between
Women and Men at Work Act) was adopted completely by the Riksdag and came into force on 1 July 1980.
56
The Equal Treatment Act or Equal Opportunities Act had three sections: prohibitions against discrimination, active measures to be taken by the employer, and enforcement mechanisms and procedures. This was the first fundamental anti-discrimination Act to be passed in Sweden. However, the new Act was amended and added to in order to fit with other laws which were being enacted at the same time (the Swedish Secrecy Act 1980, the Protection Employment Act
1982, etc). Other issues were treated in 1985 regarding the proposals of the Swedish
Equal Opportunities Ombudsman (“
JämO ”) on opening up information about other candidates in hiring or promotion procedures, granting compensation to persons
55 Carlson, L., (2007), p. 83.
56 Carlson, L., (2007), p. 125.
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тексту, который должен здесь отображаться. called to an investigation for associated costs, etc. Finally, a new Equal Opportunities
Act enacted in 1991 replaced the 1979 Act. Some fundamental matters were added:
57
- A change in the definition of discrimination to include situations in which the candidates have comparable merits, but there is a discriminatory intent by the employer;
- Allowance of the use of information other than an agreed work evaluation to prove wage discrimination;
- Explicit inclusion of sexual harassment and retaliatory actions as part of the definition of discrimination;
- Explicit statement that discrimination includes both direct and indirect discrimination so that the law could reach behavior disproportionately favoring one sex;
- The obligation for an employer to annually draft an equality plan;
- More concrete regulation for active measures even if they can be replaced by collective agreements; and
- Expansion of JämO’s authority to enforce the law.
The 1991 Act set out a definition of discrimination, distinguished between direct and indirect discrimination, and covered sexual harassment and retaliatoty actions. It also has new provisions: the candidate applying for a job is as protected as an existing employee; the report on annual equality is the responsibility of employers. In addition, the 1991 Act has an important supplement giving concrete rules on active anti-discrimination measures and expanding the jurisdiction of the
JämO.
Another change is the transformation of maternal leave from an obligation to a right of women in 1976.
58 The Parental Leave Act enacted in 1976 expanded the right to parental leave by granting rights to both parents in an effort towards complete formal equality between the sexes in law. Under the Act, the period of leave is seven months with cash benefits in accordance with the Swedish National
Insurance Act. A parent could take either 100% or 50% of the leave and became eligible to take leave after either six months of continuous employment, or twelve months of employment within the past two years.
59
Female workers not eligible for parental leave as above were given the right to maternal leave beginning six weeks before and ending six weeks after the birth of a child. The Act aims to expand the right to parental leave for both male and female parents. But by stating that
“…maternal leave beginning six weeks before and ending six weeks after the birth of
57 Carlson, L., (2007), p. 129.
58 Carlson, L., (2007), p. 112.
59 Carlson, L., (2007), p. 116.
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тексту, который должен здесь отображаться. a child”, 60
this provision seems to left the decision to take parental leave from the hands of a father. That is the basis for the employers refusing to respect the decision of a father. By chance, maternal leave is an obligation for women, because during the year after the enactment of the Parental Leave Act, only 0,5% of men took parental leave.
61
The 1976 Act was replaced by a new act in 1978; the 1978 Parental Leave
Act retains provisions which had been found to be suitable, and adds new provisions, such as that parents always have the right to reduced hours. The 1978 Act itself was further amended many times during the 1980’s and the first half of the 1990’s. It and its supplements were finally replaced by the 1995 Parental Leave Act. This includes the right for a mother to leave work for breastfeeding, the right to compensation for leave taken due to pregnancy, rights of adoptive parents to take leave, and increased the age of the child to eighteen months for full-time leave, etc.
Although the Swedish anti-discrimination legislation regarding women in the period before 1995 was established on the basis of a generally progressive viewpoint, especially after Sweden adopted a new constitution, the key is that there are specific
Acts directly protecting women at work such as the 1976 Parental Leave and the
1979 Equal Opportunities Act. However, the number of acts as well as their detailed provisions show that much needs to be done to combat discrimination against women at work.
Sweden became a Member of the European Union in January 1995, confirming its integration into the development of the Community. The country was committed to reduce differences in every EU area by comparison with other Members States. This means that, along with the integration of the economy, Swedish legislation which is seemingly neutral also has to comply with the laws of the European Union to a certain extent, and this covers labour legislation. This is because the Treaties and
Laws of the European Union set forth the most fundamental framework that all
Member States must observe. That said, Sweden is the Member State which has the most progressive and appropriate anti-discrimination legislation regarding women in the European Union.
62
When Sweden joined the European Union, Swedish legislation on labour issues regarding women expanded quickly in almost every area in accordance with the general principles and the fundamental provisions of the legislative framework of the European Union. There are many changes in the law
60 Carlson, L., (2007), p. 117.
61 Carlson, L., (2007), p. 117.
62 http://hdr.undp.org/docs/publications/ocational_papers/oc26a.htm
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тексту, который должен здесь отображаться. involving both the amendment of the existing laws and the drafting of new laws in accordance with the fundamental priciples of legislation of European Union. The laws that related to the protection of women at work were amended and completed on some matters. When the 1991 Equal Opportunities Act (hereinafter called 1991
Act) was adopted, the Government of Sweden completed their treatment of such issues as gender equality, equal pay, family responsibility and work for women, parental leave, and the division of occupations.
63
Matters regarding discrimination on the ground of sex in labor and employment matters in the European legislation system were mainly contained in certain directives. These directives set forth the general frameworks which are mandatory minimum requirements imposed on the Member States. There are four directives which are the major source of law concerning sex discrimination and parental leave.
Of course, the fundamental anti-discrimination provision in Community law is to be found in Article 119 of the Treaty of Rome (now is Article 141 of EC Treaty). This states that:
Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.
The four Directives are the Equal Pay Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women; the Equal Treatment Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; the Parental Leave Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC and the Burden of Proof Directive
97/80/EC on the burden of proof in cases of discrimination based on sex. Swedish legislation was indeed harmonized in accordance with these directives.
In order to comply with these Directives, Swedish legislators added new provisions and amended or repealed old ones which were seen as not relevant.
Furthermore, Sweden, as well as the other Member States, had to abolish acts, rules and administrative provisions that created discrimination contrary to the policy and
Directives of the European Union. In addition, the Member States also had to take active measures ensuring equality for working women. On the principle of equal pay, the 1991 Act contained detailed provisions on pay issues which complied with the requirements of the Equal Pay Directive 75/117/EEC. In particular, in 1998, the 1991
63 Carlson, L., (2007), p. 131.
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Act stipulated that employers (having more than nine workers) must perform survey, analysis, and report activities and must prepare a plan of action for equal pay in each year.
64
The mandatory provisions on the employer’s survey obligations were extended employers shall now annually survey and analyse matters so as to prevent unwarranted pay differentials between men and women. In 2000, the Article 11 of the 1991 Act was amended to require that any differences of pay between the sexes exist, the employers shall survey and analyse the regulations and practices concerning pay and other term of employments and indicate the active measures that will be taken to remove those differences within three years.
65
Furthermore, the provisions concerning the employer’s responsibility for sexual harassment were sharpened in this Act, mandating that employer take those measures necessary to prevent sexual harassment, and also imposing a duty to investigate in situations coming to the knowledge of the employer.
66
The Equal Opportunities Ombudsman,
JämO
, was given the authority to monitor these efforts and the labour unions were given the right to petition the Equal Opportunity Council and seek financial penalties for non-compliance. Since 2001, the trade union organizations at both central and branch level may apply for fines for non-compliance. This change in the law was seen as an opportunity to vitalise the participation of local trade unions in wage survey work.
67 The newest amendments made in 2005 were intended to strengthen the 1991 Act and take the further measures necessary to ensure compliance with the
EC Equal Treatment Directive 76/207/EEC, Social Security Directive 79/7/EEC, and
Pregnant Workers Directive 92/85/EEC.
68
The definitions of direct and indirect discrimination were amended to be consistent with the definitions as stated in the other Swedish discrimination legislation.
In the case of parental leave, Sweden was already one of the most generous countries in the world,
69
because under the current rules parents have a combined right to 450 days of paid parental leave when a child is born or adopted. Moreover, Swedish parents have the individual right to half of the period of parental leave, but it is possible to transfer almost all of this period to the other parent. This is a great interest to workers who are parents, simultaneously, it also is a base in order to promote
64 Carlson, L., (2007), p. 132.
65 Carlson, L., (2007), p. 133.
66 Carlson, L., (2007), p. 132.
67 Legislation concerning wage surveys, analysis and equal pay action plans, Jun 2003, p. 2.
68 Carlson, L., (2007), p.134.
69 Nystrom, B., (1998), p.363.
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тексту, который должен здесь отображаться. equality between men and women in Sweden. It would seem that there will be no need to make any changes to Swedish legislation in order to fulfil the requirements of Directive 96/34/EC on parental leave, which grants an individual right to parents to a parental leave entitlement of at least three months.
70
However, to date, the 1995
Parental Leave Act has been amended eight times since its passage.
71
The parents are entitled to take leave of 25%, 50%, 75% or 100% of leave of absence since the first amendment in 1996.
72 A major amendment was the result of the European
Commission giving notice in 1998 for failure to legislate a mandatory two-week maternal leave in compliance with Article 8 (2) of the Pregnancy Directive.
73
Other amendments covered the right of parents to take leave and also allow leave one-eight time and the right to work part-time until a child was eight years of age; further, the empoyer was obligated to grant leave as requested by the employee unless the employer could show that it would cause disruptions in the workplace. Significant changes were also made in 2006. The qualification requirement was removed from the Act, allowing parents to be eligible for parental leave immediately upon employment. The employer now may not disfavour an applicant or employee for reasons that have a connection with parental leave in accordance with this law. If dismissal ensued, this dismissal decision may be proclaimed invalid if the employee so requests.
In addition, the local of burden of proof indicated that, the plaintiff has no prove that she was treated less favourably than someone in a comparable situation, only demonstrate circumstances that give cause to assum that she has been discriminated against or the object of retaliatory measures; the employers have to show that discrimination or victimisation has not occurred. These were covered by the 1991
Act and Parental Leave Act in compliance with requirements of Community law, particularly Council Directive 97/80/EC of 15 December 1997 on shifting burden of proof in cases of discrimination based on sex.
74
The 1991 Act sets forth case has been discriminated against or subjected to victimisation, it is up to the employer following the burden of proof rule, Section 45a: the employer shows that discrimination or victimisation has not occurred. The burden of proof rule for wage discrimination was now to be based on the Burden of Proof Directive 97/80/EC. In
70 Nystrom, B., (1998), p.363.
71 Carlson, L., (2007), p.135.
72 Carlson, L., (2007), p.136.
73 Carlson, L., (2007), p.136.
74 Eklund, R., Sigeman, T., and Carlson, L., (2008), p. 48.
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тексту, который должен здесь отображаться. case concerning parental leave, the Parental Leave Act ruled that ‘If a job applicant or employee can present circumstances which give reason to believe that he or she has been subjected to unfair treatment for reasons related to parental leave, it is incumbent upon the employer to show that there has been no such unfair treatment, or that the unfair treatment is a necessary consequence of the parental leave’.
In summary, Swedish anti-discrimination legislation on labour and employment issues has greatly changed during the period from 1995. This period has amended, supplemented and enacted many concrete issues on women workers and the Equal Treatment Act 1991 was amended many times. Employers must perform analyses of any wage differences to remove any unfairness; trade unions are part of the wage survey process, and can seek fines if they are hindered in this. According to the 1995 Parental Leave Act, an employee may not be dismissed for reasons linked to maternal leave or leave for taking care of children. There was a change in the mandatory leave period from six weeks to seven weeks before and after a woman gives birth. The employer has to demonstrate that no discrimination occurred or that the it was a necessary consequence of the parental leave.
Discrimination against women at work involves working women being treated unfavourably by comparison with men in the same situation, this all under the control of an employer. Thus, on gender grounds, working women are restricted in their rights when they join the labour market: whether in recruitment, wages, social security, promotion, or parental leave.
The anti-discrimination provisions of both Sweden and Vietnam are based on the
Constitutions of the respective States, and should be in accordance with international labour standards.
Issues relating to labour and employment in Sweden are stipulated quite explicitly and concretely in the various acts on each separate area. Provisions regarding antidiscrimination are primarily covered by the 1991 Equal Opportunities Act and the
1995 Parental Leave Act.
With the aim of ensuring equality between men and women, the 1991 Act states that discrimination on the ground of sex includes both direct and indirect discrimination. Direct discrimination is prohibited by the provision that the
“employers may not place a job seeker or an employee at a disadvantage by treating
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тексту, который должен здесь отображаться. her or him less favourably than they treat, have treated or would have treated someone else in a similar situation, if such unfavourable treatment is genderrelated”(Art. 15). This is a form of discrimination shows the clear intent of the employer which can easily be identified. With this form, if the employer can not prove that his or her unfavourable treatment is not related to gender, the court can find a violation by the employer.
Indirect discrimination is prohibited by the provision that “Employers may not place a job seeker or an employee at a disadvantage by applying a provision, a criterion or a practice that appears to be neutral but which in practice is particularly disadvantageous to persons of one sex or the other, unless the provision, criterion or practice can be justified by a legitimate aim and the means are appropriate and necessary in pursuit of such an aim”. (Art. 16) This form does not show the public character of direct discrimination, but is more sophisticated and even cunning. When examining such discrimination, authorities such as the
JämO
or the Court need to gather evidence and hear all sides if they are to prove discrimination.
The definitions of direct and indirect discrimination are linked to the active measures employers must take to prohibit any discriminatory action on the ground of sex. Furthermore, the existence of both forms of discrimination has the effect of raising the duty of employers to protect the equality of employees.
With this as a basis, the 1991 Act legislated regarding working conditions, pay issues and recruitment (Articles 4 to 12). There are also articles on the prohibition of harassment (Art.22 and 22a). There are some provisions which are concidered as measures against discrimination and regulate the compensation (Articles 23 to 29).
The most important part, perhaps, is to make sure anti-discrimination is effective by implementation of supervisory mechanisms and procedures against discrimination
(Articles 30 to 57).
The 1995 Parental Leave Act is another legal instrument promoting equality between men and women at work in Sweden. The right of parental leave relates to the duty of parents to take care of a child, so the Act includes provisions on the extent, limits and conditions of leave, damages and judicial procedure in case of default, prohibition of unfair treatment and assignment of the burden of proof. The aim is to prohibit this type of unfair treatment of working women.
The two Acts were legislated on the demand for equality and the improvement of working conditions for women, and the prevention of unfair treatment of working mothers. They have the purpose of promoting equal rights for men and women in matters relating to work, the terms and condition of employment and other working condition, opportunities for personal development at work, and parental leave of
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тексту, который должен здесь отображаться. employees having a child. These Acts not only set out provisions on prohibition of discrimination and provide authority for settling discriminatory activity but also set out mandatory obligations for employers who must protect employees from such violations and discrimination. Employers have the burden of proof that there is no unfair treatment.
In Vietnam, the piece of legislation governing protection of the working women is chapter X of the 1994 Labour Code (Articles 109 to 118), 75 and some articles in the
2006 Law on Gender Equality. In addition, there are two other under-law acts concretely implementing the articles of the Labor Code on working women. Those are Decree No. 23/CP dated 18/4/1996 of the Government detailing and guiding the implementation of some articles of Labour Code, in particular provisions on working women, and Circular No. 03-LDTBXH/TT dated 13/01/1997 of the Ministry of
Labor, Invalids and Social Welfare guiding the understanding of some articles of
Decree No.23/CP. These provisions were adopted on basis of principle of quality clearly provided in the 1992 Constitution of Vietnam and in two conventions of ILO that Vietnam has already ratified: Convention (No. 100) concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value, and
Convention (No. 111) concerning Discrimination in respect of Employment and
Occupation.
With the aim of promoting equal rights and improving and raising conditions for women in working life, Sweden adopted the 1991 Equal Opportunities Act. The act consists of fifty seven articles which are divided into three main sections: prohibitions against discrimination, active measures to be taken by the employer, and enforcement mechanisms and procedures, including the establishment of Equal
Opportunities Ombudsman, JämO .
First section contains the prohibitions of discrimination. These prohibitions have the objectives to promote equal rights between men and women, and improving conditions for women in working life.
Second section provides for the active measures to be taken by the employer to promote equality in employment, as well as encourage an equal balance of employment between men and women to the extent reasonable taking into consideration the employer’s resources and circumstances.
75 Chapter Ten, Labour Code of 1994
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Third section establishes an apropriate mechanism for ensuring implementation of this mechanism according to which, if violations still arise, the employer has to pay damages for the loss suffered by the plaintiff and for the violation. Violations of the duty to perform active measures could also lead to fines.
JämO w as empowered to bring actions to the Swedish Labour Court on behalf of a wronged individuals if they consented and JämO found the case to be significant for understanding the application of the law.
In addition, the 1995 Parental Leave Act also provided a right to a leave of absence for employees who are parents and responsible for the care and upbringing of either a birth child or an adopted child, all to be without any discrimination against women.
Vietnamese law does not adopt a separate act on discrimination against women at work. This issue, as mentioned above, is governed by the 1994 Labour Code that has separate Provisions on Female Employees
76
and the 2006 law on Gender Equality.
Furthermore, the articles of the Labor Code are implemented with detail guidances in
Decree No. 23/CP of the Government and Circular No. 03-LDTBXH/TT of of the
Ministry of Labor, Invalids and Social Welfare. The Government now is preparing some decrees to implement the Law on Gender Equality. The first decrees that has been recently adopted is Decree 70/2008/NĐ-CP.
Anti-discrimination regarding women at work involves many aspects. However, the author focuses on the provisions concerning women at the workplace and such main issues as: recruitment, payment, working hours and rest time, dismissal, and promotion and training for promotion.
2.3.2.1
Provisions on anti-discrimination in recruitment
Recruitment is the first stage in the development of an organization and a very important one. The workers creates both valuable products and surplus value. With the aim of realising profits, therefore, employers would not hesitate to select good quality workers with the highest labour productivityif wages and conditions could be freely set. The legislation of most countries has provisions to protect employees in general, and women workers in paticular when they seek to be recruited. Of course, each state has different ways of regulating the issue. Swedish legislation stipulates that ensuring equality in recruitment is a duty and obligation of employers. Article
Eight of the Equal Opportunities Act states that ‘Employers shall endeavour to ensure that both men and women apply for vacant positions’. Therefore, in relation to
76 Chapter Ten, the 1994 Labour Code of Socialist Republic of Vietnam.
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тексту, который должен здесь отображаться. recruitment, if employers do not try to ensure that both men and women join equally in the recruitment process, employees will lack real equal opportunity. The principle of equality is explicitly stated in the law, and both employer and employee should co-operate in taking the active measures needed to achieve equality in working life.
That said, the employer is the person who has the main role in the recruitment process.
Beyond that, the Equal Opportunities Act also stipulated that the employer must take steps to promote equality between men and women in all types of work, and among the various categories of employee. As well as in recruitment, male or femalemust be treated alike in training, skills development and other suitable measures.
77
The Act thus not only stipulate that employers must endeavour to create equality and avoid differentiating between men and women in recruitment, it also stipulates what employers must do in order to protect the equal rights of employees.
The Article 17(1) states that prohibitions against sex discrimination when the employer takes a decision on an employment issue, selects a job seeker for an employment interview or implements other measures during the employment procedure. In addition, this Act also stipulates that where there equal distribution of the sexes is lacking, employers shall, in respect of new positions, strive in particular to recruit applicants of the underrepresented sex and shall seek a gradual increase in the proportion of employees of that sex. However, this need not be done when there is special cause not to implement such measures or such measures can not reasonably be demanded taking into consideration the employer’s resources and circumstances in general.
78
For instance, in a particular type of works which contains a genuine risk for certain groups of employees, the employers may not use a such group.
79
This shows that the endeavour to achieve equality does take the special case into account
When employers perform their obligation, the
JämO
has the power to supervise and encourage the employers’ compliance with the law. If discrimination occurs against a job applicant or an employee seeking promotion, the
JämO
or the employee’s organization is the representative who will protect the victim and bring an action before the Equal Opportunities Commission. The task of the Equal Opportunities
Commission is to consider issues relating to defaults and impose fines. According to
Article 45a of the Equal Opportunities Act, it is up to the employer to show that discrimination or victimisation has not occurred in recruitment.
77 Art. 7, the 1991 Equal Opportunities Act.
78 Art. 9, the 1991 Equal Opportunities Act.
79 Art. 6, Chapter 4, the 1977 Work Environment Act.
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Article 16 of the Parental Leave Act states that an employer may not subject a job applicant or employee to unfair treatment for reasons connected with parental leave when making a decision on employment, selecting a job applicant for interview, or taking any other step in the employment process. This stipulation aims to prohibit discrimination against a job applicant or employee who is taking or might take parental leave for pregnancy or take care of a child. In other words, an employee is entitled, as a parent to leave of absence from his or her employment, but in the same way, he or she is also ensured equal rights in recruitment if that person is a job applicant. When a job applicant or employee presents circumstances which give reason to believe that he or she has been subjected to unfair treatment for reasons related to parental leave, it is up to the employer to show that there has been no such unfair treatment, or that the unfair treatment is a necessary consequence of the parental leave (Art. 24). This stipulation prevents employers discriminating against employees who are parents and protects the equality between men and women workers.
Swedish labour law puts the burden of proof on the employer as he or she has more responsibility in the protection of his or her employees. This is not the case in
Vietnam.
In Vietnam, pursuant to the fundamental principles of the 1992 Constitution of the
Socialist Republic of Vietnam, the 1994 Labour Code and the 2006 Law on Gender
Equality stipulate that an employer must implement the principle of equality between males and females in respect of recruitment. Moreover, an employer must give preference to a female who satisfies all recruitment criteria for a vacant position which is suitable to both males and females in an enterprise.
80
This stipulation is concretized by Decree No. 23/CP. Article 9 of this Decree forbids adoption of regulations, rules which are less favourable than the provisions of law regarding women workers; behaviors restraining absorbtion of women laborers in employment; cursing, beating, etc., which encroach upon the honor and dignity of women during work. In case the employers violate the above-described bans, they shall be dealt with in accordance with law, depending on the seriousness of their violation.
81
According to the Labour Code of Vietnam, the State labour inspectors shall have the following main duties:
82
inspects compliance with provisions on labour, occupational
80 Art. 111, Labour Code (1994).
81 Decree No.23/CP dated April 18, 1996 by the Government stipulating in details and guiding the implementation of some articles in the Labour Code concerning specific regulations on women workers.
82 Article 186, the 1994 Labour Code.
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тексту, который должен здесь отображаться. safety, and labour hygiene; investigates work-related accidents and other violations of labour hygiene standards; resolve any complaints or claims relating to labour in accordance with the provisions of the law; and deal with breaches of labour laws in accordance with their delegated authority. They may make recommendations to the competent bodies to handle the violations that they discovered and are outside their competence. The State labour inspectors do not have duties that may allow them to promote equality in employment. The 2006 Law on Gender Equality, Article 13 (1) also provides that women and men shall be treated equally in employment if they have the same qualifications.
In the current Vietnamese law, there are regulations that aim at ensuring equal rights in recuitment. However, many from these regulations are too general compared to Swedish legislation. Vietnamese labour law still does not impose on employers a duty to take measures for ensuring equality in employment. Moreover, the labour law does not set out appropriate concrete active measures that an employer should take to ensure the equality of employees. The law stipulates employers’ right to employ workers but there is no attached duty or obligation to ensure equality between men and women or endeavour to balance the sexes in the labour force.
83
Nevertheless, the Government of Vietnam does exhibit preferential policies towards enterprises that use a large number of working women.
84 These policies aim at preventing employers from discrimination against women in recruitment and work and promoting equality for women in working life. The preference policies are reflected in granting low interest loans from the National Fund for Employment ; enterprises’s right to use part of their total annual investment to cover the improvement of working conditions of women workers; income taxes being reduction; or enterprises’ right to request budgetary assistance from the National
Fund for Employment.
85
However, the conditions for enjoying these preferential policies are rather difficult to satisfy. For example, an enterprise is entitled to take low interest loans from the National Fund for Employment if it has used a large number of female employees pursuant to the current law. The current law also stipulates that: “in case of special difficulty and with a decision of the Prime
Minister, enterprises shall be allowed to take low interest loans from the National
83 Article 8, the 1994 Labour Code.
84 Art. 5, Decree No. 23/CP: The enterprise which regularly employs from 10 to 100 women workers and has women labourers accounting for 50% or more of its total regular workforce; and the enterprise which regularly employs over 100 women workers and has women workers accounting for 30% or more of its regular work forces.
85 Art. 6 and 7, Decree No. 23/CP.
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Fund for Employment”
86
. The decision on granting low interest loan will be issued by the Premier upon suggestion of Ministers, Head of General State-owned
Companies, chairmen of the People’s committee of province, or of city.
87
In addition, the enterprise must have a standing project to show they need investment increase from the State budget, the capacity to carry out the project and arrangement of employment for working women.
88 These complicated requirements are obstacles for carrying out the above-mentioned preference policies. In the reality, some employers do not want to recruit female employees to the extent that allow them to enjoy the preferential policy.
The labour law of Vietnam is not so closely connected with the adopted gender equality strategy. The current law provisions pay more attention on prohibitions, while it is so important to provide for active measures that must be implemented by employers to ensure equality between sexes in employment matter. The law also does not establish an appropriate mechanism for monitoring and supervising employer operations. In other words, the relationship between legislation and gender equality strategy is neither comprehensive nor close. Although, many provisions of
Vietnamese Labour law are progressive, they still are difficult to be implemented.
They lay scattered in various documents such as the Code, Decrees and Circulars and, moreover, they were passed at different periods of time with few efforts of their review and hence are often overlaping or even contradictory. A the result, aim of protection of equality between men and women in employment does not fully meet the requirements of the life.
In summary, the legal systems of both countries, namely, Sweden and Vietnam aim at ensuring and promoting equality between men and women in recruitment.
Swedish legislation contains clear provisions which ensure job applicants from discrimination and the duty of employers to take measures to ensure equality between men and women in recruitment. Vietnamese legislation focuses mainly of the right of employers to recruit workers. It does not provide for the duty of employers to ensure employment equality between men and women. The Decrees or
Circular detail and guide implementation of the articles of Labour Code also do not solve the problem.
86 Art. 6 (1), Decree No. 23/CP.
87 Section V (1a), par. 2, Circular No. 03-LDTBXH/TT.
88 Section V (1a), par. 3, Circular No. 03-LDTBXH/TT.
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2.3.2.2
Provisions on anti-discrimination regarding payment
Having equal payment for the same work is an important precondition for obtaining economic equality between men and women workers. The legal regulations of this matter are found in the Convention (No.100) on Equal Remuneration for Men and
Women Workers for Work of Equal Value, adopted on 29 June 1951 by the General
Conference of the Interntional Labour Organization. However, differential payment for equal work still exists. The employer tend to think that working women are too burdened with family care, being in less stable health state, and therefore do not possess high level of productivity as men do. Moreover; labour costs for women are higher than those of men. All these factor make employers reluctant to recruit women workers. These are some of the causes that may lead to the fact that women get wages lower than that paid to men for same work. In response, the ILO amended some further measues to Convention No. 100 for preventing discrimination on remuneration between men and women workers.
In Sweden, according to statistics in 2006, there are approximately 4.2 million wokers, of whom women represent at least a half. There are about 75 percent of women of the age between 16 and 64 years were employed, compared to approximately 80 percent of men.
89
This means that Sweden has a very high percentage of women in the labour market. However, a considerable percentage of the women have part time jobs, less than 35 hours a week, as they have to to combine work and child care.
90
This is a factor leading to differences in wages. Sweden is a country where payment differentials between men and women are small compared to those in many other countries, but on average, women still earn less. According to the fact sheet of Swedish Institute in October 2007,
91
on average, women’s monthly salaries are 92 per cent of men’s monthly salaries when differences in the choice of profession and sector are taken into account.
The Equal Opportunities Act is an important legal instrument protecting working women from discrimination at work in Sweden and the matter of equal pay is also considered in it. There are no minimum wages regulated by Swedish law 92 . Wages in each sector are negotiated by parties in the labour market - generally by the trade unions and employers’ organizations - through collective agreements. In order to
89 See ISA fact sheet, Living and Working in Sweden , (2007), p.3.
90 See ISA fact sheet, Living and Working in Sweden , (2007), p. 4.
91 See Si. fact sheet, Gender equality in Sweden , (2007), p. 2.
92 See ISA fact sheet, Living and Working in Sweden , (2007), p. 1.
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тексту, который должен здесь отображаться. ensure equality on remuneration of men and women workers, the Equal
Opportunities Act imposed a duty on employers. Annually, the employers shall survey and analyse their agreements and practices concerning pay and other terms of employment, and look at differentials between men and women who perform work considered equal or of equal value. Employers should then consider whether these pay differentials are directly or indirectly gender-related. The assessment need to examine differences between men and women who perform work considered to be equal; groups of employees who perform work that is or is normally regarded as female-dominated and groups of employees who perform work that is considered to be of equal value to such work but is not or is not normally regarded as femaledominated. These regulations apply to all employers regardless of the number of employees. However, employers with less than ten employees are not affected by section 11, which states that employers shall prepare a plan of action aimed at equal pay. The regulations on the wage survey act as an instrument to obtain equal pay within the realm of a single employer. These regulations have been successful in the sense that many groups of persons in female-dominated work as well as individuals have had their pay adjusted. In addition, the Articlle 17(5) of Equal Opportunities
Act also prohibits sex discrimination when the employer applies pay terms or other terms of employment in respect of work considered equal or equal value. The regualation are also designed to promote equal pay in Sweden though pro-active measures, rather than through litigation and legal proceedings. According to a report of the
JämO
,
93
pay differentials are not related to gender: Within the member enterprises/the government sector, gender does not impact on pay. The reasons for pay differentials are more likely to be occupation, age and education.
Each year, employers have to prepare a plan of action for equal pay and therein report the results of the survey and analysis, and state what pay adjustments they are planning and the measures needed to attain equal pay for work considered equal or of equal value in the following year. The cost computation and timetable for implemention must also be shown in the plan. Employers shall supply any employees’ organization with whatever information may be necessary to enable it to collaborate in the pay survey and analysis and in the preparation of a plan of action for equal pay. This is a vital mechanism to ensure objectivity and shows the employer’s duty of co-operation in reducing pay differentials. Furthermore, employers must prepare a plan of action for equal pay, this being an active measure to gradually reduce the pay gap between men and women. Preparing a plan and the annual reporting will increase the experience of employers who will be able to set
93 S urveys, analysis and action plan for equal pay , (2005), p. 7.
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тексту, который должен здесь отображаться. out appropriate measures to improve the pay differentials among employees in general, and between men and women workers in particular. According to the fact sheet of Swedish Institute in October 2007
94
pay differentials are greatest in the private sector. For instance, in the private sector, the average monthly wage in 2002 amounted to SEK 20,500 for women, 84,71 percent of the men’s wage of SEK
24,200; in 2005, the figures were SEK 22,600 for women which is 85,28 percent of the men’s wage of SEK 26,500; in 2006, the figures were SEK 23,300 85,66 percent of the men’s wage of SEK 27,200; and in 2007 they were SEK 24,200 for women,
85,81 percent of the men’s wage of SEK 28,200.
95
These results show that the percentage is increasing annually and the pay gap between men and women workers in private sector is narrowing. Thus, the regulations in the Equal Opportunities Act seem effective in promoting equal pay between men and women workers in Sweden.
Regarding recruitment, if litigation arises regarding pay differentials between men and women who perform work considered equal of of equal value, it is up to the employer to show that they are not gender-related. If the employer violates this, he may be fined pursuant to Section 35. The Equal Opportunity Ombudsman is entitled to apply for fines of from SEK 10,000 to SEK 20,000 depending on the size of the enterprise.
In Vietnam, there are two categories of pay in two sectors. In the private sector, the wage scale is agreed between employer and employee based on the State minimum wage. In the public sector, the wage scale depends on the degree of seniority and is also linked to the minimum wage. For example, a graduate in the public sector begins with a starting salary of 85 percent of 540,000VND/per month for 1 year. (540,000VND is approximately 31,76 USD in 2008). In order to ensure equal pay, the Labour Code of Vietnam stipulates that employer must implement the principle of equality of males and females in respect of wage increases, and wages.
Decree No. 114/CP dated 31 December 2002 stipulating details and guiding the implementation of some articles in the Labour Code concerning wages, stated that
Female workers defined in Article 111 of the Labor Code, if doing the same jobs as male workers shall enjoy the same wage.
96 Nevertheless, even if this is a common stipulation on the principle of equal pay, no measures have to be implemented by employers to ensure that working women always do receive equal pay. The 2006
94 See Si. fact sheet, Gender equality in Sweden , p. 2.
95 See SCB, Statistics Sweden, Average monthly salary by sector 1992-2007 .
96 Article 18, Decree No.114/CP.
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Law on Gender Equality also stipulates that man and woman are equal in terms of payment and bonus,
97
but again without any measures to enforce or encourage this.
According to the General Department of Statistics of 2006,
98
the average income of working women is 1,187,000VND (approximately 72USD), of men
1,368,000VND (83 USD). These figures show that the average income of women is about 86,8 percent of that of men. Women’s incoms may be lower than men because women workers spent much time off, for illness, pregnancy, child birth, and child care, etc., They also often take on the simplest jobs with limited wages as they lack professional qualifications. In addition, traditionally, working women do not have so many opportunities to study or undergo advanced training and join the higher paid sectors. Another traditional viewpoint affecting women’s income, is that mothers take leaves of absence when their children are ill though they are paid 75 percent of their salary by social security funds.
99
Although, the practice of the labour market concerning working women has the problems mentioned above, Vietnamese legislation only set outs certain fundamental principles, such as that the employer is prohibited from dismissing a female employee or unilaterally terminating the labour contract of a female employee for reason of marriage, pregnancy, taking maternity leave, or raising a child under twelve months old, except where the enterprise ceases its operation. 100 Further, some concrete provisions are difficult to apply; for example, Article 115(2) states that a female employee who is employed in heavy work and is in her seventh month of pregnancy shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
The concept ‘lighter duties’ was not determined, which is crucial in a sector which only has the type of work which cannot operate one hour less a day. The legislators have not provided concrete provisions which would ensure that the working women who performs the duties of family and motherhood would receive equal remuneration. Similarly, they have not introduced measues which will overcome the present lower paid status of working women.
In summary, the legislation of Sweden and Vietnam accept the principle of equal remuneration for men and women workers for work of equal value as set out in ILO
Convention No. 100. The matters relating to labour issues between men and women
97 Article 13(1).
98 Ministry of Planning and Investment, General Department of Statistics, The surveys of cost of living in 2006.
99 Article 25 the 2006 Law on Social Security.
100 Art. 111(3), Labour Code (1994).
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тексту, который должен здесь отображаться. in Sweden were legislated for by way of acts containing detailed prohibitions, active measures to be performed by employers and mechanisms and prcedure aimed at obtaining equality in remuneration and recruitment. However, there are no minimum wages regulated by Swedish law, since wage issues are the responsibility of the parties in the labor market, generally the trade unions and employers’ organizations.
It is difficult, and misleading to state a “normal wage” in the Swedish labor force.
101
Vietnamese legislation has some advanced general provisions on equal pay, but they only contained provisions which acted as principles. Vietnamese legislation does not lay out the provisions regarding active measures to ensure equal pay between men and women. Crucially, no employers’ duty is mentioned in the law.
2.3.2.3
Provisions on anti-discrimination regarding working conditions
Working conditions cover such elements as working hours, holidays, promotion, industrial safety and hygiene, social security, preferential policy, measure of stable wage, and prevention of harassment, etc.
Anti-discrimination regarding working conditions on the grounds of sex seeks to ensure that all rights at work are the same for women as for men. They are entitled to work, to advanced training for promotion and are not to be dismissed for reasons relating to discrimination; both men and women have the same rights on working hours, vacations and holidays. They are also entitled to enjoy the same health care and social security. As this thesis has limited aims, in this part the author only deals with working hours, holidays, leave of absence, dismissal and promotion and training for promotion.
Working hours and holidays
The Equal Opportunities Act of Sweden states that employers shall take whatever steps may be required, insofar as their resources and general circumstances permit, to ensure that working conditions are suitable for both women and men. This means that employers must perform the necessary measures to ensure that employees are not discriminated against on grounds of sex. In the work process, all employees are entitled to equal benefits, such as the hours of work, time of rest, holidays and annual leave. According to the 1982 Working Hours Act, the regular working hours of an employee may not exceed 40 hours per week. Overtime is limited to 48 hours over a fourweek period and no more than 200 hours per year. All employees are to have rest periods, hours of free time, paid holidays and paid annual leave. According to the
Section 4 and 5 of the Annual Leave Act, An employee shall be entitled to twenty-
101 See ISA fact sheet, Living and Working in Sweden , (2007), p. 2.
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тексту, который должен здесь отображаться. five days of annual leave in every annual leave year, where his or her employment commenced after 31 August, be entitled to five days of annual leave during the annual leave year in which the employment commenced. All employees in Sweden are entitled to a minimum five weeks paid annual leave, after the first year of employment. However, in cases of fixed-term contracts, the parties may agree that the employee does not have the right to paid leave, but shall receive holiday pay instead. In order to ensure the working hours or time of leave of absent, the Equal
Opportunities Act laid out some provisions which imposes the employer shall take to ensure that working conditions are suitable for both women and men. And employer shall facilitate the combination of gainful employment and parenthood with respect to both female and male employees.
102
In addition, the Article 6 also stipulates that, employer shall ensure that they have taken measures to forestall and prevent any employee from being subjected to gender-related harassment, to sexual harassment or to victimisation. The implementation of these measures is assessed through a plan to promote equality which is prepared in co-operation between employer and trade union.
In Vietnam, working hours and holidays are laid down in the 1994 Labour
Code.
103 Working hours shall not exceed eight hours per day or forty eight (48) hours per week. The daily working hours shall be reduced by one or two hours for workers who perform extremely heavy, dangerous, or toxic works as stipulated in a list issued by the Ministry of Labour, Invalids and Social Welfare and the Ministry of Health.
The Article 69 of Labour Code stipulates on overtime: An employer and an employee may agree on additional working hours provided that the number of additional hours worked is no more than four hours per day or two hundred (200) per year. Nearly, the State shall ensure that the right to work of women is equal in all aspects to that of men. It shall establish policies to encourage employers to create conditions for women to work on a regular basis and apply widely the regime of flexible working time, part-time and casual employment and working from home.
104
This is detailed under the Article 3 of the Decree No. 23/CP. The full paid holidays are provided for in Article 73: An employee shall be entitled to have fully paid days off on the following public holidays: One day of the Calendar New Year Holiday;
Four days of the Lunar New Year Holidays; One day of the Victory Day; One day of the International Labour Day; One day of the National Day. Where the public holidays referred to above coincide with a weekly day off, the employee shall be
102 Articles 4 and 5 of the 1991 Equal Opportunities Act.
103 Chapter Seven, articles 68-81 of the 1994 Labour Code.
104 Article 109 (1) of the 1994 Labour Code.
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тексту, который должен здесь отображаться. entitled to take the following day off also. The full paid annual leave in Article 74, there are three levels of leave depending on whether the work is normal, heavy, dangerous, or toxic works: Twelve (12) working days shall apply to employees working in normal working conditions; Fourteen (14) working days shall apply to persons working in heavy, dangerous, or toxic jobs, or in places with harsh living conditions, and to persons under the age of eighteen (18) years; Sixteen (16) working days shall apply to persons working in extremely heavy, dangerous, or toxic jobs, or in heavy, dangerous, or toxic jobs in places with harsh living conditions. In addition, during her menstruation, a female employee shall be entitled to a break of thirty (30) minutes every day, and during the period of raising a child under twelve (12) months old, a female employee shall be entitled to a break of sixty (60) minutes every day, and still receive the same wage.
105
Leave of absence
According to the 1995 Parental Leave Act of Sweden, there are five types of parental leave for care of children:
106
Full leave for a female employee in connection with her child’s birth and for breastfeeding; full leave for a parent until the child has reached 18 months or, subject to the parent’s receipt of full parental benefit, for time thereafter; leave by three quarters, one half, one quarter or one eighth with parental benefit respectively; leave for a parent in the form of a reduction of normal working hours by up to one quarter until, in most cases, the child reaches the age of eight years; temporary leave for care of a child. These types of parental leave are detailed in articles thereafter.
Regarding maternity leave issue, the Article 4 of 1995 Parental Leave Act states that: a female employee is entitled to full leavve in connection with her child’s birth during a continuous period of at least seven weeks prior to the estimated time of delivery and seven weeks after delivery. In parental leave, the Article 5 stipulates all employees regardless of sex who are parents are entitled to full leave until the child is 18 months old and they will receive full parental benefit in accordance with the
1962 National Insurance Act. Including an employee who has adopted a child or received a child with the intention of adopting it, he or she is also entitled to full leave 18 months and shall be counted from the time when the employee received the child into his or her care. In period of leave of absence above-mentioned, the employees who are parents may be mutually transfered and shall not be discriminated against regarding parental leave. If an employer takes any decision is
105 Article 115 (3) of the 1994 Labour Code.
106 Article 3 of the 1995 Parental Leave Act.
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тексту, который должен здесь отображаться. considered in breach of this Act shall pay damages for any loss suffered and for any infraction that occurred. If a job applicant or employee can present circumstances which give reason to believe that he or she has been subjected to unfair treatment for reasons related to parental leave, it is incumbent upon the employer to show that there has been no such unfair treatment, or that the unfair treatment is a necessary consequence of the parental leave following the burden of proof of the 1995 Parental
Leave Act.
Vietnamese legislation has also stipulated that a female employees shall be entitled to maternity leave prior to and after the birth of her child for a total period of four to six months as determined by the Government on the basis of the working conditions and nature of the work and whether the work is heavy, harmful, or in remote locations.
107
A female employee who has paid social insurance contributions shall be entitled to a social insurance allowance equal to one hundred (100) percent of her wage and an additional allowance of one month's wages. The Article 117 (2) of the 1994 Labor Code also deals with term which ensures that a female employee can return her job: At the end of normal maternity leave, or maternity leave with additional unpaid days off, a female employee shall be guaranteed employment upon her return to work. However, the legislation has no provisions guaranteeing equality in recruitment, promotion, rearrangement and other conditions for female employee who take such leave for maternity and child care. The law of both countries also stipulates that a female employee who is employed in heavy work and is in her seventh month of pregnancy shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage. There has been progress in the legislation regarding working women, and an employer must not assign a female employee to heavy or dangerous work, or work requiring contact with toxic substances, which may have adverse effects on her ability to bear and raise a child, in accordance with a list issued by the Ministry of Labour, Invalids and
Social Affairs and the Ministry of Health Likewise, enterprises which are using female employees for the above work must formulate plans to train and gradually transfer those female employees to other more suitable work. These enterprises must also carry out measures to protect the health of female workers, improve working conditions, or reduce the number of working hours. Nevertheless, those progressive stipulations lack any supervisory mechanism, thus they may be truly effective.
There is a difference between Swedish and Vietnamese legislation to leave of absence of a pregnantor. In Sweden, a female employee is entitled to full leave seven weeks prior to the estimated time of delivery. This means that all female employees
107 Article 114 of the 1994 Labour Code.
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тексту, который должен здесь отображаться. who is prior to birth of child may be entitled to full leave seven weeks. In Vietnam, a female employee who is employed in heavy work and is in her seventh month of pregnancy shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
108
This stipulation only deals with the female employees who are employed in heavy work while the female workers in other works have not this preference.
Dismissal
The Article 17 (7) of the 1991 Equal Opportunities Act forbids the employer to give a notice of termination, summarily dismisses, lays off or takes other interventionary measures having sex discrimination against an employee.
According to the 1995 Parental Leave Act, the Article 16 (7) also prohibits an employer who subjects a job applicant or employee to unfair treatment for reasons connected with parental leave when giving notice to, dismissing or laying off an employee, etc. The employees are protected from any violation by Section 17: If an employee is given notice or dismissed solely for reasons pertaining to parental leave, the notice or dismissal shall be declared invalid at the employee’s request. Under this
Act, therefore, all employees who are pregnant, or mother or, father of a small child shall not be discriminated against if are during lawful time of leave of absent.
Both above-mentioned Acts of Sweden regarding protection of women at work, thus, contain the provisions which ensure an employee from dismissal on grounds of sex or of parental leave regardless male or female. Although an employee is dismissed because any reason related to his or her employment, but, he or she is still ensured that dismissal cannot base on grounds of sex or parental leave. Especially, the Parental Leave Act ensured both male and female employees are entitled to leave of absence from his or her work. However, stipulation in Section 16 (7) not only ensures equal dismissal between the parents who are entitled to leave of absence
(between men and women), but also ensures equal dismissal between the employees related to parental leave and other employees.
According to Article 111 (3) of the 1994 Labour Code of Vietnam, an employer is prohibited from dismissing a female employee or unilaterally terminating the labour contract of a female employee for reason of marriage, pregnancy, taking maternity leave, or raising a child under twelve (12) months old, except where the enterprise ceases its operation. This stipulation directly is adopted to protect working women.
108 Article 115 (2) of the 1994 Labour Code.
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Promotion and training for promotion
The current law of Sweden also concretely stipulates the right of an employee to be promoted or selected for training for promotion. This right will be protected from discrimination on grounds of sex or for reasons related with parental leave. The
Article 17 (2) of the Equal Opportunities Act states that: The prohibitions against sex discrimination contained direct or indirect discrimination or harassment when the employer takes a decision on promotion or selects an employee for training for promotion. The Section 16 (2) of the Parental Leave Act ruled that: An employer may not subject a job applicant or employee to unfair treatment for reasons connected with parental leave when making a decision on promotion or selecting an employee for training prior to promotion. Promotive opportunity of an female or male employee is protected by laws. An employer cannot base on grounds of sex or parental leave to discriminate against an employee if his or her ability serves the standards of promotion or training for promotion.
In Vietnam, the Law on Gender Equality ensures promotion opportunity for employees regardless they ar men and women. Man and woman are equal in terms of qualifications and age in promotion or appointment to hold titles in the title-standard professions.
109
In summary, the above-mentioned matters are governed by the legislation of both
Sweden and Vietnam. But in Sweden, the current law provides for a mechanism guaranteeing the equality of employees. The law lists measures to be performed and provides for a supervisory mechanism to ensure the implementation of provisions on anti-discrimination of women at work. Vietnam only adopted general principles on the right of working women. The law still does not provide concrete measures which actively protect the right of working women.
109 Article 13 (2) of the 2006 Law on Gender Equality.
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The Swedish anti-discrimination legislation regarding women at work is now is significantly integrated with European Union law. It covers both the field of labour in general, and the protection of working women in particular. Labour issues relating to working women are in a separate law, that includes provisions showing both the employer’s and the employees’ duties. Furthermore, the supervisory authority has an important role in supervising employer compliance. Sweden is considered to be one of the EU countries with the greatest level of gender equality. The percentage of gainfully employed women in the country is 79 per cent, the highest in the world.
110
To achieve this result, there is a happy meeting of appropriate legal policies and the efforts of parties strictly observing them.
A primary study of the Swedish law on anti-discrimination has brought about the following lessons that may be helpful to Vietnam.
Firstly , anti-discrimination law in Sweden consists of the provisions that have been adopted in separate laws, namely, the Equal Opportinities Act and the Parental Leave
Act. Since this piece of legislation governs the right and freedoms of the people, it takes form of laws promulgated by the Riksdag (National Assembly).These two basic anti-discrimination acts provides for general provisions, implementation measures, prohibitions, supervisory mechanisms, compensation and procedure for ensuring protection of women from discrimination at work. It is worthy noting that the provisions of these act are implemented directly wihout any requirement of furthur guiding. In contrast, the anti-discrimination law of Vietnam consists of too general provisions in the Labour Code and the Law on Gender Equality. The implementation of these provisions must be guided with a set of under-law acts. This practice can lead to overlapping of different legal acts, time-consuming implementation.
Secondly , the law of Sweden clearly defines the concept of discrimination that covers both direct and indirect discrimination. This classification allows employees to easily identify employers’ discrimination acts. More importantly, clear definition of a discrimination act provides for the legal ground under which the supervisory body
110 See ISA fact sheet, Living and Working in Sweden , (2007), p. 3.
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тексту, который должен здесь отображаться. and other authorities to handle employers’ discriminatory actions. In addition, the
Equal Opportinities Act defines the action of harassment at work as prohibited discrimination. Simultaneously, when an employee is harassed the employer must investigate and take active measures to prevent future harassment. Vietnamese legislation still does not clearly define an employer’s discrimination act.
Thirdly , in Sweden, the regulations on wages, recruitment and other working conditions deal with the employer’s obligations and duties to ensure equality between men and women at work as part of their equality in the society. Over and above that, an employer employing more than ten employees has to prepare a plan of action for equal pay and therein report the results of a survey and analysis that is geared to achieving for the goal of equal pay for equal work. The Vietnamese legislation has no provision regarding such analysis or action plan of employers.
Implementation of these measures helps ensuring the responsibility of employers in regard of equality in wages payment.
Fourthly , the Swedish Parental Leave Act regulates parental leave as a right of both mother and father. This Act aims to ensure the equality of men and women with respect to family responsibilities. The Act also contains anti-discrimination provisions regarding women when they are pregnant, in maternity leave, and employers’ burden of proof. The different types of parental leave for employees are classified as full leave, temporary leave or long leave with parental benefit, leave without parental benefit and distribution of leave between mother and father, etc.
Vietnamese legislation does not provide that parental leave is the right of both mothers and fathers. Thus, only working women now have the right to such leave.
Furthermore, the burden of proof is not laid down in the law, so the employer has less responsibility for the equal rights of working women.
In short , Swedish anti-discrimination legislation regarding women at work is specific and contains concrete mandatory responsibilities of the employer. It clearly defines the term discrimination that includes direct, indirect discrimination act and harassment. The issuessuch as working condition, recruitment and payment are governed by general principles and concrete norms. The law provides for measures and mechanism for implementation of equality in wage payment, parental leave.
Vietnamese labour law in general and the anti-discrimination legislation regarding women at work in particular, are an important part of the Vietnamese legal system.
The policies of Communist Party of Vietnam and the State of Vietnam always aim at
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тексту, который должен здесь отображаться. achieving equality between men and women. The National Assembly and the
Government had adopted a lot legal acts designated for carrying out the
Constitutional principle of equality between men and women in all areas. The starting point of the development of law on anti-discrimination of women at work was the 1946 Constitution that set forth constitutional principle of equality between men and women. Article 6 of the 1946 Constitution stated that all citizens of
Vietnam are equal in all areas: Political, economic and cultural. Article 9 of the 1946
Constitution stated: Men and women are equal in all apsects. The Government of
Vietnam has adopted a lot of legal acts and regulations to govern issues of equality between men and women in other areas. The most obvious achievments could be seen in political areas. To significant extent, equality between emen and women in economic area has been achieved. The 1995 Labour Code (amended in 2002, 2006,
2007) is good example of such achievements. The Code contains a chapter dealing with matters relating to working women. Recently, the National Assembly has adopted law on Gender Equality. The Law contains a lot of provisions governing issues relating to women at work and serves as very important basis for further development of anti-discrimination of women at work.
However, as, the actual provisions still reflect the thought of the old subsidized planned economy, especially in area of employment. With transition of Vietnam into market economy, most of legal institutions need to be renovated and the piece of law of anti-discrimination of women at work is not an exception. Moreover, Vietnam now is getting deeper and deeper integrated with the world and this fact also calls for renovation of the country’s legal system. Therefore, to continue the cause of improvement of the anti-discrimination legislation is an essential demand.
Improvement of the anti-discrimination legislation should be carried out in cosideration of the folowing facts:
Firstly , although the legislators can learn from the legislative experiences of other countries, they need creat legal provisions protecting the equal rights of working women which are applicable in circumstances of Vietnam. A large number of working women in Vietnam are of low education level, especially of low legal knowledge. Majority of women work in agriculture and they tend to follow compliance practices, i.e, do what they are requested without any resistance. When being employed in any other sector, they bring in these compliance practices. The other factor is the low income and unemployement of major part of women. Given to this, women are eager accept any labor contract terms.
Secondly , the improvement in the anti-discrimination provisions should lead to a harmonious relationship between the legitimate rights of employers and employes and the flexibility of the market economy. In other words, legislation in the labour
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тексту, который должен здесь отображаться. area should combine economic and social policies. A harmonized combination will work to limit the negative sides of a market economy, simultaneously to increase the effect of the provisions. Especially, Swedish law deals with responsibility of the employer and needed conditions encouraging employers to join in the antidiscrimination plan.
Thirdly , Vietnamese legislation should track worldwide trends and progressive viewpoints when amending, and improving its anti-discrimination legislation. This means that Vietnam should not be in conflict with the ILO’s principle on protecting women workers. Nevertheless, Vietnam tends to apply principles considered appropriate to practice and conditions there.
Fourthly , the improvement of legislation must lead to comprehensive protection of women workers in recruitment, remuneration and other working conditions and the opportunities linked to employment should also be considered. On the one hand, the women workers are entitled to enjoy the rights of men, and, on the other hand, they must be ensured the opportunities for employment, and not be restricted by preferential policies.
Fifthly , the legislators must ensure that any improvement to the legislation be connected with the relevant measure in other fields. The laws should be unified and harmonized to serve as the basis for the overall strategy of socio-economic development.
In general, the separate provisions on female employees in the Labour Code and Law on Gender Equality of Vietnam show an advanced viewpoint on guarantee of substantive equality for woking women and anti-discrimination regarding women at work. Working women were considered and helped to become independent workers who are not depended on others. In fact, however, those provisions are not effective enough to ensure women workers receive equal treatment to men. The regulations made by the Government to guide the implementation of the relevant articles of the
Labour Code did not fully solve the issues because they cannot replace the provisions adopted by the National Assembly. The Labour Code stipulates that employers are strictly prohibited from conduct which is discriminatory towards a female employee.
But discrimination is not defined in the labour law. The labour legislation of Vietnam should provide some more concrete stipulations to promote the implementation of those advanced provisions which were previously enacted.
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On basis of the findings made in the previous sections, the following proposals are made for the improvement of the anti-discimination legislation regarding women at work.
Firstly, there needs to be a definition of discrimination
The Labour legislation of Vietnam should clearly define the various forms of discrimination including both direct and indirect. The definition should contain basic criteria for determing an action as discriminative. This allows the competentt authorities and employees to identify and classify the discriminatory actions of employers and then select the appropriate measure for their handling.
Secondly, establishement of an appropriate suppervision mechanism
Suppervision mechanism is important factor for ensuring employers’compliance with law on anti-discrimination of women at work. Therefore, the Labour legislation of
Vietnam should be more empowered to the State labour inspectors on inspection of equality in labour issues. Its task is to encourage employers to voluntarily comply with the law on equality between men and women at work, and, at the same time, monitors employers’ compliance with the law.
Thirdly, improving legal provisions on recruitment.
Vietnam has quite advanced provisions regarding recruitment, but their enforcement still is not so effective and as the consequence, discrimination in recruitment happen in large scale. For example, the Technology of Telecommunications and Electronics
Tan Thanh Long Ltd. company expressly stated that it wanted to recruit six malestaff for business and technical matters. Qualifications: professional informatics, telecommunications, electricity, accounting, business.
111
Women weere deprived of the right to be recruited. In order to protect working women in recruitment, the labour legislation of Vietnam should be improved to impose mandatory measures on employers. For instance, employers shall be bound to develop skills training and other suitable measures to promote a rational distribution jobs to women and men seeking for employment. And employers shall endeavour to ensure that both women and men have opportunity to apply for vacant positions. If at workplaces where there is not, in the main, an equal distribution of women and men in a certain type of work or within a certain category of employees, employers shall, in respect of new positions, strive in particular to recruit applicants of the underrepresented sex and shall seek a gradual increase in the proportion of employees of that sex. In addition,
111 Paper of Vietnamese Students No. 9 dated from 28 Feb. to 7 Mar. 2007, Employments, p. C
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Vietnam should provide a job seeker who has not been employed, with the right to obtain written information from the employer about the professional experience and qualifications of the person who was awarded the job.
Fourthly, improving the legal provisions on wages
The Labour Code of Vietnam as well as the Law on Gender Equality deal with salary matters through rather general provisions 112 . There are few concrete provisions ensuring equal pay for work considered equal or of equal value. Consequently, the competent authorities do not have appropriate legal basis handling the violation of employers and employees do have adequate legal ground to protect themselves from unequal treatment in pay. The legislation should be improved to encompass provisions on equal pay when work is considered equal or of equal value. Moreover, appropriate legislative measures should be adopted to guarantee equal pay. Such measures may include: employers shall annually survey, analyse and report the pay differentials between women and men who perform work considered equal or of equal value; employers shall assess whether pay differentials that exist are directly or indirectly gender-related; employers shall supply any employees’ organisation to which they are bound by a collective bargaining agreement with whatever information may be necessary to enable the organisation to collaborate in the pay survey and analysis and in the preparation of a plan of action for equal pay. Adoption and implementation of such measures will help identifying positive and negative effects on employees, which the State competent agencies may intervene with.
Finally , improving the legal provisions on working condition
The Labour legislation of Vietnam already provides for various progressive provisions on working condition. However, these provisions were adopted mostly in the Government’s decrees and Ministries’ circulars. There is need in enhancing the effect of these provision by including them in relevant laws. The legislation should stipulate that employers bear the responsibility for ensuring female and male employees equality in other working conditions. Concretely, employers shall facilitate the combination of gainful employment and parenthood with respect to both female and male employees; employers shall take measures to forestall and prevent any employee from being subjected to gender-related harassment, to sexual harassment or to victimisation. In addition, the legislation should provide that if a job applicant or employee can present circumstances which give reason to believe that he or she has been subjected to unfair treatment for reasons related to parental leave, it
112 Articles 55-67, Chapter Six, Labour Code (1994), Art. 13 (1) of the Law on Gender Equality.
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тексту, который должен здесь отображаться. is incumbent upon the employer to show that there has been no such unfair treatment, or that the unfair treatment is a necessary consequence of the parental leave.
The above-mentioned proposals for improving the anti-discrmination provisions regarding women at work mentioned above can carried out in the following alternatives:
Firstly , these anti-discrimination matters should be systematized, reviewed and than adopted in the form of a separate law, like the Swedish Equal Opportunities Act. A separate law will create many advantages in allowing implementation be carried out in a comprehensive, timely way and in every area of the public, private, and rural sectors. .
Secondly , the provisions of anti-discrimination of women at work may be reviewed and amended to the relevant existing laws or ordinances. This alternative has some advantages, for instance, keeping the existing law effective with some new amendments, consistency in implementation on basis of the measures already carried out. However, this alternative may not solve the issue comprehesively in context of the current law-making activities in Vietnam, ie, law-drafts are made and presented to the National Assembly by the concerned Ministries or agencies.
Thirdly , the provisions of anti-discrimination of women at work may be developed further in Decrees of the Government that are to be adopted to implement the 2006
Law on gender Equality. This alternative is now being in the process.
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Anti-discrimination legislation protecting women at work in Sweden and Vietnam respectively is built on different economic and social conditions. However, the two countries adhere to the ILO Conventions. The Swedish legislation, in addition, also complies with the labour law of the European Union. Although, the Swedish legislation started later than in some of the other developed countries of Europe, still goes ahead compared to that of Vietnam. Naturally, Sweden may offers useful lessons to Vietnam. Sweden has the smallest gender gap in the world. Swedish women become independent through their work and they share unpaid work and family responsibilities with their husbands. The content of anti-discrimination legislation regarding women at work of Sweden is primarily concentrated in the
Equal Opportunities Act and the Parental Leave Act. The provisions in these Acts are actually instruments which aim ensuring and promoting equality between women and men in the workplace. The main measures to ensure equality in employment in
Sweden are not the fines or punishments, they are employers’ duties. In respect of recruitment, payment as well as other working conditions, Swedish legislation regarding women at work, the employers are imposed obligations that not only to protect women workers but also to promote equality between male and female workers.
The Swedish anti-discrimination legislation regarding women at work attempts to provide a balanced and harmonious relationship between women and men. It does not provide separately for women or for men. This means that the law itself does not contain discrimination in structuring the law on anti-discrimination of women at work. This is a good lesson for Vietnam.
Though Vietnam ratified some ILO Conventions relating to working women, the legislation protecting them consists of a few articles in the Labour Code and a small number of other legal texts offering some further guidance. Those are the separate provisions for women. Nearly that, Vietnamese legislation has just stipulated the fines or punishments to employers’ violation, rather the measures to ensure and to promote equality as in Sweden.
Vietnamese legislation needs to be improved continuously in order to ensure the equal relationship between women and men at work as well as at home. The whole legal system of Vietnam should protect women at work with legal provisions which are not designated to a specific sex as it is the current law. Further, active equality measures to be taken by employers must be laid down as in Sweden. The supervisory
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тексту, который должен здесь отображаться. mechanism may depend on structure of the State apparatus of Vietnam, but a powerful body is needed to supervise the employer’s compliance with law which regarding equality between men and women at work.
Sweden has no minimum wage legislation. This may be because of the relative freedom of employees as well as of employers there. However, this would be a problem in Vietnam as employers currently hold much more power than employees.
If the State does not set a minimum wage, the employers may well push employees wages down.
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1.
Charter of the United Nations, signed at San Francisco on 26 June 1945.
2.
Convention on the Elimination of All Forms of Discrimination against
Women, adopted by the United Nations General Assembly on 18 December
1979.
3.
Convention (No.100) concerning Equal Remunation for Men and Women
Workers for Work of Equal Value, adopted by the General Conference of the
International Labour Organisation on 29 June 1951.
4.
Convention (No.111) concerning Discrimination in respect of Employment and Occupation, adopted by the General Conference of the International
Labour Organisation on 25 June 1958.
5.
International Covenant on Civil and Political Rights, adopted by the United
Nations General Assembly in resolution 2200A (XXI) of December 16, 1996, and entered into force on March 23, 1976.
6.
Universal Declaration of Human Rights, adopted and proclaimed by the
United Nations General Assembly Resolution 217A (III) of 10 December
1948.
European Legislations
7.
Council Directive 75/117/EEC of February 10, 1975 on the approximation of the Laws of the Member States relating to the application of the principle of equal pay for women and men.
8.
Council Directive 76/207/EEC of February 9, 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
9.
Council Directive 92/85/EEC of October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.
10.
Council Directive 96/34/EC of June 3, 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.
11.
Council Directive 97/80/EC of December 15, 1997 on the burden of proof in cases of discrimination based on sex.
12.
European Social Charter, adopted by the Council of Europe of October 18,
1961 and revised on May 3, 1996 and came into force on July 1, 1999.
56

13.
SFS 1974:152 Regeringsformen (Instrument of Government).
14.
SFS 1982:80 Employment Protection Act.
15.
SFS 1982:673 Working Hours Act.
16.
SFS 1962:381 National Insurance Act.
17.
SFS 1991:433 Equal Opportunities Act.
18.
SFS 1995:584 Parental Leave Act.
19.
SFS 1977:1160 Work Environment Act.
20.
SFS 1974:371 The Labour Disputes Act.
21.
SFS 1999:130 Prohibition of Discrimination in Working Life on Grounds of
Disability Act.
22.
SFS 1999:132 Prohibition of Discrimination in Working Life on Grounds of
Sexual Orientation Act.
23.
SFS 1999:133 Prohibition of Discrimination in Working Life on Grounds of
Ethnic Origin, Religion or other Belief Act.
24.
Constitution (1992) of the Socialist Republic of Vietnam.
25.
Labour Code, adopted by National Assembly of the Socialist Republic of
Vietnam on 23 June 1994, (amended 2002, 2006, 2007).
26.
Law on Gender Equality (2006)
27.
Law on Social Security (2006)
28.
Nghị định số 23/CP ngày 18/4/1996 của Chính phủ quy định chi tiết và hướng dẫn thi hành một số điều của Bộ luật Lao động về những quy định riêng đối với lao động nữ
.
29.
Decree No.23/CP dated April 18, 1996 by the Government stipulating in details and guiding the implementation of some articles in the Labour Code concerning specific regulations on women workers.
30.
Nghị định số 39/CP ngày 18/4/2003 của Chính phủ quy định chi tiết và hướng dẫn thi hành một số điều của Bộ luật Lao động về việc làm .
31.
Decree No. 39/CP dated 18/4/2003 by the Government detailing and guiding the implementation of some articles of Labour Code on employment .
32.
Thông tư số 03-LĐTBXH/TT ngày 13/01/1997 của Bộ Lao động, Thương binh và Xã hội hướng dẫn thực hiện một số điều của Nghị định số 23 .
33.
Circular No. 03-LDTBXH/TT dated 13/01/1997 by the Ministry of Labor,
Invalids and Social Welfare guiding the performance of some articles of
Decree No.23/CP .
57

34.
Thông tư liên bộ số 03/TTLB ngày 28/01/1994 của Bộ lao động, Thương binh và Xã hội và Bộ Y tế quy định các điều kiện lao động có hại và các công việc khác không được sử dụng lao động nữ
.
35.
Interministerial circular No.03/TTLB dated 28/01/1994 by the Ministry of
Labor, Invalids and Social Welfare and Ministry of public health stipulating the labour harmful conditions and works which do not use women .
35.
Gender equality in Sweden , Fact sheet, available at: http://www.sweden.se/upload/Sweden_se/english/factsheets/SI/SI_FS82q_Ge nder_equality_in_Sweden/Gender_equality_in_Sweden_FS82q_Low.pdf
(accessed 6 August 2008)
36.
http://www.sweden.se/templates/cs/FactSheet____17932.aspx
37.
Legislation concerning wage surveys, analysis and equal pay action plans .
Report on Swedish Experiences by the Equal Opportunities Ombudsman, Jun
2003, available at: http://www.jamombud.se/inenglish/docs/jamorapport2003_1.0.pdf
(accessed
15 October 2008)
38.
Living and Working in Sweden , ISA Fact sheet, Published in February 2007, available at: http://www.isa.se/upload/english/factsheets/living_and_working_in_sweden.
pdf (accessed 28 October 2008)
39.
S urveys, analysis and action plan for equal pay . Report on Swedish
Experiences by the Equal Opportunities Ombudsman, November 2005, available at: http://www.jamombud.se/inenglish/docs/GovernmentalReport2005.pdf
(accessed 28 October 2008)
40.
SCB, Statistics Sweden, Average monthly salary by sector 1992-2007 , available at: http://www.scb.se/templates/tableOrChart____149088.asp
(accessed 2 November 2008)
41.
Anderman, S. D.,
Labour Law: management decisions and workers’ rights
,
4 th ed., Butter worths London, Ediburgh, Dublin 2002.
42.
Blanpain, R., Labour Law in European Union , 7 th
rev. ed., Kluwer Law
International 2000.
58

43.
Blanpain, R.(ed.), Comparative Labour Law and Industrial Relations in
Industrialized Market Economies , 9 th rev. ed., Wolters Kluwer, Austin TX
2007.
44.
Bogdan, M. (ed.), Swedish Law in the New Millennium , Norstedts, Stockholm
2000.
45.
Carlson, L., Searching for Equality: Sex Discrimination, Parental Leave and the Swedish Model with Comparisons to EU, UK and US Law , Instus,
Uppsala 2007.
46.
Cotter, A.M.M., Gender Injusice: An International Comparative Analysis of
Equality in Employment , Ashgate, Bulington 2004.
47.
Eklund, R., Sigeman, T., and Carlson, L., Swedish Labour and Employment
Law: Cases and Materials , Instus, Uppsala 2008.
48.
Fahlbeck, R. and Sigeman, T., European Employment and Industrial
Relations Glossary: Sweden , Sweet and Maxwell, London 2001.
49.
Khurana, J., The effectiveness of Non-discrimination and equality protections in Canada and in Europe: combating racism and guaranteeing substantive equality , Master thesis in Human Right Law, Faculty of Law, University of
Lund, 2007.
50.
Numhauser-Henning, A., (ed.), Legal Perspective on Equal Treatment and
Non-Discrimination , Kluwer Law, The Hague 2001.
51.
Prechal, S. and Burrows, N., Gender Discrimination Law of the European
Communities , Darmouth, Aldessha 1990.
52.
Strand, M., The Formal concept of Discrimination , Master thesis, Faculty of
Law, University of Lund, 2006.
53.
Stjernrup, K., Equality and Development, A gender equality approach to development co-operation and trade in the context of EU , Master thesis,
Faculty of Law, University of Lund, 2006.
54.
Schmidt, F. (ed.), Discrimination in Employment: A study of six countries by the Comparative Labour Law Group, Almqvist & Wiksell, Uppsala 1978.
55.
Tomasevski, K., Women and Human Rights , 3 nd
impression, Zed Books Ltd,
London and New York 1999.
56.
Nyström, B.,
Community Labour Law – A Challenge to the “Swedish
Model
”?, in Enggels, C. and Weiss, M. (eds.),
Labour Law and Industrial
Relations at the turn of the Century: Liber Amicorum in Honour of Roger
Blanpain , Kluwer, the Netherlands,1998.
57.
Weiwei, L., Equality and Non-discrimintion Under International Human
Rights Law , Norwegian Centre for Human Rights, University of Oslo, 2004.
58.
Gardner, J., Discrimination as injustice , Oxford Journal of Legal Studies,
Vol.16, 1996.
59

59.
http://www.sweden.gov.se
60.
http://www.jamombud.se
61.
http://www.thelocal.se
62.
http://www.scb.se
63.
http://hdr.undp.org
60