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1. OVERVIEW OF THE NATIONAL LEGISLATION
1.1. Law on Prevention and Protection against Discrimination
1.2. Law on Labor Relations
2. METHODOLOGICAL FRAMEWORK
2.1. Criteria andNo table of contents entries found. manner of selection of printed media and Web portals (defining the sample)
2.2. Manner and criteria for selection of job vacancies
2.3. Protocol on coding the job vacancies necessary for quantitative analysis
2.4. Protocol on software entering and analyzing of data: Defining the variables, frequencies and correlations
3. RESEARCH RESULTS
3.1. RESEARCH SAMPLE
3.2. DISCRIMINATORY AND NON-DISCRIMINATORY JOB VACANCIES IN THE PRINTED MEDIA
3.3. FORMS OF DISCRIMINATION
3.4. BASES FOR DISCRIMINATION
3.5. MULTIPLE DISCRIMINATION IN JOB VACANCIES
4. CONCLUSIONS AND RECOMMENDATIONS
ANNEX 1: Quantitative Analysis Form
ANNEX 2: Review of planning regions and municipalities by planning region
ANNEX 3: Examples of job vacancies in which discrimination is registered
Jovan Ananiev is PhD in Political Sciences, Associate Professor of Political Systems at the State University “Goce Delcev”- Shtip, Macedonia and Dean at the Faculty of Law. Since 2011 is Member of Commission against Discrimination and since 2013 Member of ECRI (European Commission against Racism and Intolerance) Councel of Europe, Strasbourg. He is author of number of books and papers and member of many international project teams.
Zaneta Poposka is PhD, Officer in Human Dimension Department in OSCE Mission in Skopje and Assistant Professor in International Public Law at the Faculty of Law, University Goce Delchev- Shtip, Republic of Macedonia. She is prominent expert in the field of discrimination with well research experience.
This Research Report contains results from the research of discriminatory job vacancies. It was carried out over a sample of 988 job vacancies, advertised in four daily newspapers and a Web portal in the period from 15th April to 15th September 2013. Data were transformed into codes, which were analyzed in a statistical software later on, and quantitative data were obtained as a final product. Job vacancies were subject of the analysis.
This research is first of its kind, providing for several benefits. First, it is a systematized monitoring of a phenomenon for a period of five months and is abundant of data, which can be corrected and can provide for the actual state-of-play as regards the occurrence of discriminatory job vacancies. Hence, it enables the experts to obtain comprehensive observations, helps the Commission for Protection against Discrimination to alert and give recommendations, and assists the policy creators to undertake measures aimed at tackling and resolving the actual situation. Second, it contributes to the science that studies human rights and the labour and labour relations so as to gaining knowledge on the subject of the research, together with all its specifics. Third, the research also contributes from a methodological point of view, since it can serve as a model to translate qualitative into quantitative data and provide for their further statistical and descriptive interpretation.
The text gives general overview of the national legislation in the area of anti-discrimination and labour relations and describes the methodology, the sample being researched, the level of discrimination, the forms of discrimination, the bases for discrimination, and delivers conclusions and recommendations.
The right to work and to have freedom of choice regarding employment of every individual on an equal footing with others is the basic economic right of human beings, which is based on the postulates of productivity and profitability of every citizen through a freely chosen or accepted employment on the open labor market. This right is еssential in order for one to be able to exercise the other human rights, and it constitutes an inseparable part of human dignity. The right to work is an individual right that belongs to each individual, but at the same time it is also a collective right. It includes in itself all forms of labour, regardless of whether the job is an independent job or a paid job, both in the public and private sectors. As provided in the General Comment No. 18 to the International Covenant on Economic, Social and Cultural Rights in order for the right to work to be enjoyed in all of its forms, several requirements must be fulfilled, such as: availability, accessibility, acceptability and quality.
The protection against discrimination is extremely important in the area of employment and labor. Namely, the State is required to recognize the right of all on equal footing with others, the possibility to make for a living through work, i.e. through a freely chosen and accepted job on the open and inclusive labor market. On the list of measures that the State needs to take in order to enable that this right be enjoyed, the first measure is the prohibition of discrimination on different grounds in all forms, sectors and levels of work. Standards require that discrimination be prohibited with regard to inter alia the conditions for accessing a certain job, self-employment or occupation, including the criteria for selection of candidates for employment. In this regard, and according to case of Firma Feryn from the Court of Justice of the European Union the prohibition of discriminatory job vacancies or statements on a discriminatory ground is fully supported.
The Law on Prevention and Protection against Discrimination (LPPD) adopted in April 2010 provided for general prohibition of discrimination in the Republic of Macedonia. This Law builds on the general equality clause contained in Article 9 of the Constitution as well as other anti-discrimination clauses enacted in several laws, among which especially important those in the area of labor and work relations. LPPD is expected to fill the legal gaps that exist in our legal system in the area of non-discrimination, and to provide for a more readily available legal protection for all the persons that would appear as alleged victims of discrimination. The law provides in its Article 3 prohibition on grounds such as sex, race, color of skin, gender, affiliation of a marginalized group, ethnic origin, language, citizenship, social origin, religious belief, other beliefs, education, political affiliation, personal or social status, mental and physical disability, age, family or marital status, property status and health status, in addition to the open-ended list of grounds provided with the phrase “or any other ground”.
The LPPD prohibits all forms of discrimination, including direct and indirect discrimination (Article 6), harassment (Article 7), instruction to discriminate (Article 9), and victimization (Article 10), committed by natural and legal persons both in the public and private sectors, in the areas of employment and labor, education, access to goods and services, housing, health care, social protection, administration, judiciary, science, sports, membership and activities in trade unions, political parties and civil society organizations and other areas, accordingly (Article 4). However, the Law does not explicitly prohibit discriminatory job vacancies or statements on the discriminatory ground, subject to this research report. This should be changed and harmonized with the international anti-discrimination standards in the future as stipulated with the above stated Firma Feryn case. In addition, Article 12 of the LPPD provides that multiple discrimination is a more severe form of discrimination, i.e. discrimination against a certain person on several discriminatory grounds occurring at the same time. This is of exceptional importance because every human being has different personal characteristics which can lead in many cases to what’s known as cumulative or inter-sectoral discrimination.
Direct discrimination on some discriminatory ground is prohibited in accordance with Article 6 paragraph 1 of the LPPD. It occurs when a person was treated less favourably by means of differentiation, exclusion or restriction that results in or could result in his/her rights being taken away, interfered with or limited vis-a-vis another person in a comparable situation, just because of his/her protected characteristics such as ethnicity, sex, age, mental and physical disability or other ground. Regarding the existence of a general justification for direct discrimination, it should be mentioned that the LPPD does not provide for it. On the other hand, the anti discrimination legislation contains a large number of general exceptions provided for in the Articles 13-15. For illustration, an action shall not be considered as discrimination in the following cases: if it is a measure provided by law that aims to encourage employment (Article 15 paragraph 1 point 2); when laying down a genuine and determining occupational requirement (Article 14 paragraph 1 point 2); with the special cases requiring positive action (Article 13); the different treatment of the persons with mental and physical disabilities in terms of receiving training and education, with a view to satisfying their special educational needs in order to create equal opportunities (Article 15 paragraph 1 point 3); and when providing the special protection envisaged by law (Article 15 paragraph 1 point 7), etc.
Indirect discrimination on a discriminatory ground is prohibited in accordance with Article 6 paragraph 2 of the Law. It occurs when a seemingly neutral provision, criterion or practice places, a person with a particular characteristic or a wider group of these persons in a particularly unfavorable position compared with other persons, except if that provision, criterion or practice arises from a justified goal and the means to achieve this goal are appropriate and necessary. The Law provides a possibility for a general justification of indirect discrimination depending on the existence of a justified goal and of the so-called proportionality test. It should be noted that the courts should play a key role when resolving the dilemma about the extent to which members of a group have been affected in cases of indirect discrimination. In this regard, it is not explicitly forbidden to use statistical data when proving these cases, and the authors think that statistical data could be admissible as evidence in court proceedings provided that the Court has decided on it freely and given this statistical data faith.
Harassment on a discrimination ground is prohibited by Article 7 of the Law, which defines it as a special form of discrimination. Harassment and humiliating treatment constitute a violation of the dignity of a person or of a group of persons. It arises from the discriminatory ground and has as a goal or as an end result violation of the dignity of the respective person or creation of a threatening, hostile, humiliating or intimidating environment, approach or practice. Harassment is defined more broadly so as to encompass violation of the dignity not only of an individual but also of a group of persons sharing the protected characteristic. However, the definition does not mention that harassment is an undesired treatment, which means that there can be no victim of harassment if the individual wanted and approved of that behavior. While the LPPD is unclear about the question as to who can harass, a partial answer to this question is provided in the Labor Relations Law where it is stipulated that the perpetrator of a psychological harassment at work (mobbing) can be one or more individuals in the capacity of an employer who can appear as a natural person, a responsible person or a worker (Article 9-а paragraph 4). When talking about harassment, it should be added that our legislation does not give a clear answer to the question of responsibility of the responsible person (the employer or the service provider) for the harassment committed by third parties. However, it is considered that the responsibility of the employer for the actions of third parties, including for harassment, will depend to a large extent on the nature of their relationship as well as on the future case law regarding this particular issue.
Instruction to discriminate (which is called aiding and encouraging discrimination) is prohibited pursuant to Article 9 of the LPPD as a special form of discrimination. In this regard Article 9 covers both the direct and the indirect incitement, encouragement or instruction to discriminate against someone.
Important provisions for the persons with mental and physical disability are Article 5 paragraph 1 point 12 and Article 8 paragraph 2 (which provides for reasonable accommodation). Namely, the LPPD stipulates that “adjusting the infrastructure and the services means to undertake adequate measures that are necessary in a case in order to enable the person with mental and physical disability to access, participate and advance in the work process, except unless these measures impose a disproportional burden on the employers”. This provision is criticized because it is limiting in nature, i.e. because it refers only to the adjustment of the infrastructure and services. Furthermore, the LPPD does not define the term “adequate measures” for the persons with mental and physical disability; instead, it only explains that these measures are tailored to the specific case. Another important shortcoming of this provision is the fact that the LPPD does not distinguish between the core functions of the work place, on the one hand, and the marginal and unimportant functions on the other hand. And finally, with regard to the issue of disproportional burden as formulated in this law, the national legislation fails to analyze this burden by putting it in correlation with, as the case is in others states, with the size and the status of the legal person (state or privately owned), the volume of the financial outlays, the financial sources of the employer and the possibility to receive funds from public sources or any other assistance. This clarification should be explicitly introduced in the law when it gets amended. The feature that is progressive in Article 8 paragraph 2 and is fully in line with the Convention on the Rights of the Persons with Disability is that the unjustified absence of reasonable accommodation is considered a form of discrimination.
With regard to the procedural provisions, the shifting of the burden of proof is explicitly mentioned in the Law. In addition, the Articles 16-33 of the Law provide for the establishment of an equality body – the Commission for Protection against Discrimination - and regulate the procedure before this body. The Commission is an independent body with competences covering both the public and the private sector. According to Article 24 of this Law, the Commission has extensive competencies aimed at promoting equality and preventing discrimination, which can be grouped into the following four groups:
provision of legal protection and assistance to the alleged victims of discrimination (through the resolution of individual cases and giving opinion and recommendations on concrete discrimination-related cases);
enforcement of promotional, educational and advisory competencies (awareness-raising about discrimination and the protection mechanisms at disposal, giving opinions about law proposals relevant to the protection against discrimination on the grounds mentioned, giving recommendations and initiating amendments to the regulations for the implementation and promotion of the protection against discrimination);
investigative, analytical and reporting competencies (gathering statistical data and forming data bases, conducting studies and surveys, reporting); and
capacity building and cooperation with other bodies (cooperation with the units of the local self-government and the central authorities, provision of discrimination-related training, cooperation with the proper national bodies and other countries and with international organisations in the area of protection against discrimination).
Pursuant to the Law, every person who believes to be a victim of discrimination is entitled to a submission to the Commission, and upon determining the state of affairs the Commission will give an opinion about the alleged discrimination no longer than 90 days from the day of filing the submission, whereas it will inform both the claimant and the person against whom the submission has been filed. If the Commission identifies discrimination, it will recommend means of erasing it. The person to whom the submission is addressed is obliged, in a period of 30 days upon receiving the submission, to act upon it and to remove any violation of the right. At the same time, the person is obliged to inform the Commission about the removal of the violation in question. And if the discriminating person does not act upon the recommendation within the period indicated, that is, fails to rectify the violation of the right, Commission may initiate legal proceedings before the relevant body to determine the person's responsibility.
The national system provides for 3 procedures in cases of an alleged discrimination: (i) administrative procedure (before the Commission for Protection against Discrimination pursuant to Articles 25-28 of the LPPD and before the Ombudsman pursuant to Articles 13-27 of the Law on the Ombudsman); (ii) litigation (pursuant to Articles 34-41 of the LPPD); and (iii) misdemeanor procedure (pursuant to Articles 42-45 of the LPPD).
We would conclude by saying that the LPPD, notwithstanding some weaknesses mentioned above, is a relatively solid framework for protection against discrimination based on which relevant case law can be generated, and it can help to define the boundaries of the new legal institutes laid down therein.
As to the subject matter of this research report complementary to the LPPD the authors analysed the Law on Labour Relations as lex generalis in the area of labour. Namely, Article 6 of the Law on Labour Relations unequivocally prohibits discrimination done by natural or legal persons in both the public and private sector. The law in question prohibits all forms of discrimination, including direct (Article 7 paragraph 2), indirect (Article 7 paragraph 3) and harassment (Article 9 and 9a) of the employment candidate and the worker. Discrimination is prohibited in regard to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals and pay; membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations (Article 7 paragraph 4).
One drawback is the fact that the law neither provides for the instruction for discrimination, nor does it clearly prohibit discriminatory advertisements or statements grounded on mental or physical disability. The Law in Article 24 paragraph 1 unequivocally prohibits the discriminatory job vacancies on the ground of sex, and stipulates that: "[t]he employer shall not advertise the job position only for men or for women, unless the designated gender is a prerequisite to performing the work". In the future, this should be amended and harmonised with the international anti-discrimination standards by extending the prohibition of discriminatory job vacancies to other discriminatory grounds as well.
Of special interest is the provision of the law stipulating that "[i]n concluding a contract of employment, the candidate shall not be obliged to submit a proof of their health condition, unless the employer sends the candidate to an examination at own expense" (Article 25 paragraph 5), complemented by the following provision: "[t]he examination of the knowledge or skills, or the determination of candidate's health condition shall not pertain to circumstances unrelated to the work on the given position which is the subject of the employment contract" (Article 25 paragraph 6). These provisions fully meet the standards for protection against discrimination of persons with mental or physical disability, but, nevertheless, they are being derogated if one takes into account the provisions of the Law on Civil Servants (concerning employment in the public sector), whereby the general health capability is stated as a requisite for employment (Article 9 paragraph 6, and Article 13 paragraph 2 point 3). Formulated thus, the provision, although seemingly neutral, still has a disproportional adverse effect especially to the disabled persons and/or persons with health condition, since the entire groups a priori are prevented from applying for employment. Although this criterion would be valid for some groups of persons with disability and/or persons with particular health condition, still, for persons with physical or sensory disability for example, who are psychophysically capable to carry out the essential tasks of the job, this criterion is irrelevant, and therefore extremely discriminatory. For this reason, there should be a distinction between health condition and work capability for persons with disabilities, so that these two are not equated.
The same type of provisions can also be detected in the Law on Courts (Article 45 paragraph 1 point 3), the Law on Advocacy (Article 12), the Law on Police (Article 95), the Law on Military Service (Article 31), the Law on Foreign Affairs, and others. Although this criterion does not always entail discrimination, it should be revised and put under judicial control. Authors, therefore, suggest reconsidering this criterion, which limits the accessibility of disabled persons to work positions in the state administration, judiciary and legal practice, and providing specifications in line with Article 25 of the Law on Labour Relations, that is, putting this condition within the context of the occupation itself.
Subject of analysis of this research are job vacancies in the printed media and on the Web portals where they are advertised. Following were used as criteria for the selection of the media:
frequency of advertising the job vacancies in the last three years;
share of the printed media in Macedonian and Albanian language;
daily newspaper to have the same or higher circulation compared to the circulation of all daily newspapers and to be distributed throughout the country, if in Macedonian language, and to be distributed to all municipalities where the Albanian community constitutes a majority or a considerable of the inhabitants;
the website to regularly advertise job vacancies, giving priority to a website specialized in this.
On the basis of the criteria, following printed media were selected: “Dnevnik”, “Utrinski Vesnik”, "Lajme” and “Koha”.
“Najdi rabota” (Find a Job) Web portal was selected from among the specialized Web portals.
All job vacancies, advertised in the selected daily newspapers, were analyzed, while with regard to the job vacancies advertised on “Najdi rabota” Web portal, only those in which discrimination was registered were analyzed. Job vacancies advertised from Monday to Saturday in the period from 15th April 2013 to 15th September 2013 were analyzed in SPSS Programme.
Objective of the Protocol on coding is to help translate the qualitative contents of the job vacancy into codes and to easily standardize the entry and the analyzing of the data, contributing, on the other hand, to obtaining quantitative contents to serve for quantitative analysis of the data.
The aim of this Protocol is to code maximum number of envisaged data contained in the job vacancy, with a possibility to open new codes, should, during the process of entering the data, be determined that certain data found in the job vacancies shows greater frequency, but are not coded.
Each job vacancy is a separate element of analysis. A Form, which is an integral part of the Protocol (Annex 1), was filled in on the basis of the contents of the job vacancy. The Form has a unique number, which is entered in the upper left corner of the Form, in the job vacancy advertised in the printed media and in the title of the documents when the job vacancy in the daily newspaper is scanned, i.e. in the title of the documents when the job vacancy is downloaded from the particular website.
Should a same job vacancy be advertised in a daily newspaper and on the website of “Najdi rabota”, priority is given to the one advertised in the daily newspaper, i.e. only the job vacancy advertised in the daily newspaper is filled in in the Form.
Each line in the SPSS Programme is treated as a separate job vacancy. Line number should be contained in the Form number. For instance, D 15-04/3, where „D“ stands for „Dnevnik“, “15-04” stands for the date 15th April 2013, and “/3” stands for the reference number of the job vacancy, which, at the same time, indicates the respective line in the programme in which the Form is entered.
Codes for filling in the Form and the SPSS Programme
 In the case Firma Feryn, the Court of Justice of the European Union found direct discrimination in the case where the employer publicly stated that he would not hire workers of a particular ethnic origin because such statements usually deter certain workers from applying for the job, whereby their access to the labor market is impeded (paragraph 28).
 During the process of entering the data, it is determined that part of a job vacancy requires employee for several planning regions at the same time. Therefore, new modality/code marked as “throughout the territory of the country” was inserted. In addition, it has been noticed that the modality/code marked as “no data” is necessary to be introduced in case when the job vacancy contains no information of a certain variable (for instance, region, business, number of employees, etc.).
 Unique number served to mark the form in the software so as for the person entering the data to correct the mistake and to control the reliability when entering the data.
 SPSS (Statistical Package in the Social Sciences) is IBM software which provides data to be entered, to be statistically analyzed later on and results to be presented according to the subject of the research.
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