Discrimination Practices in Employment

ANALYSIS OF THE
DISCRIMINATORY
PRACTICES IN THE
AREA OF EMPLOYMENT
AND LABOR RELATIONS
SKOPJE, DECEMBER 2013
Analysis of the discriminatory practices in the area of employment and labor relations
CONTENTS
4
Publication:
Editor in chief: Zaneta Poposka, PhD
Authors:
Zaneta Poposka, PhD; Bekim Kadriu, PhD;
Lenche Kocevska; Elena Kochoska
Translation: Igor Stefanovski
Design and editing: Ognjen Fidanoski
Printing: Royal Art
Circulation: 1000 copies
CIP catalogization in publication
National and University Library Sv.Kliment Ohridski, Skopje
331.5:342.72/.73(497.7)
ISBN 978-608-4608-13-4
COBISS.MK-ID 95458826
Summary ........................................................................................................................9
Introduction ..................................................................................................................11
I. Subject of analysis ...............................................................................................12
II. Law on Prevention and Protection against Discrimination ...............................16
III. Discrimination in the area of employment and labor relations .......................20
1. Ethnicity ..................................................................................................................20
1.1. International legal standards .................................................................................20
1.1.1. United Nations Convention on Elimination of all forms of Racial
Discrimination .............................................................................................................20
1.1.2. CHR and Protocol 12 to the Convention .........................................................21
1.1.3. Council Directive 2000/43/EC implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin ..............................22
1.2. National legal framework .....................................................................................24
1.2.1. Constitutional provisions ...................................................................................24
1.2.2. Law on Labor Relations .....................................................................................24
1.2.3. Law on Prevention and Protection Against Discrimination ..............................25
1.3. National policies ...................................................................................................25
1.3.1. National strategy on equality and non-discrimination on the grounds
of ethnicity, age, mental and physical disability and sex for 2012-2015 ...................26
1.3.2. National strategy on equitable representation ....................................................26
1.4. Situation analysis ..................................................................................................26
1.4.1. Perception of ethnic discrimination ..................................................................26
5
Analysis of the discriminatory practices in the area of employment and labor relations Analysis of the discriminatory practices in the area of employment and labor relations
1.4.2. Reported cases of ethnic discrimination ............................................................27
1.4.3. Principle of equitable representation .................................................................28
2. Age ..........................................................................................................................30
2.1.1. International Covenant on Economic, Social and Cultural Rights ....................30
2.1.2. ILO Conventions on Prohibition of Discrimination in Employment
and Occupation ...........................................................................................................31
2.1.3. CHR, Protocol 12 to the ECHR and the European Social Charter .................32
2.1.4. Council Directive 2000/78/EC establishing a general framework
for equal treatment in employment and occupation ....................................................33
2.2. National legal framework ...................................................................................34
2.2.1. Constitutional provisions ..................................................................................34
2.2.2. Law on Labor Relations .....................................................................................34
2.2.3. Law on Prevention and Protection against Discrimination ...............................35
2.3. National policies ................................................................................................35
2.3.1. National strategy on elderly people for 2010-2020 ...........................................35
2.3.2. National strategy on equality and non-discrimination on the grounds
of ethnicity, age, mental and physical disability and sex for 2012-2015 .....................36
2.3.3. National strategy on reducing poverty and social exclusion for 2010-2020 .....36
2.3.4. National employment strategy 2015 ..................................................................36
2.4. Situation analysis .................................................................................................37
2.4.1. Forms of discriminatory practices on the grounds of age .................................37
2.4.2. Perception of discrimination on the grounds of age ..........................................39
2.4.3. Reported cases of discrimination on the grounds of age ...................................39
3. Sex ...........................................................................................................................40
3.1. International legal standards .............................................................................40
3.1.1 UN Convention on the Elimination of All Forms of Discrimination
against Women ...........................................................................................................40
3.1.2 Directive 2006/54/ec of the European Parliament and the Council
of 5 July 2006 on the implementation of the principle of equal opportunities
and equal treatment of men and women in matters of employment and occupation ..41
3.2. National legal framework .....................................................................................43
3.2.1 Constitutional provisions ....................................................................................43
3.2.2 Law on Labor Relations .....................................................................................43
3.2.3 Law on Equal Opportunities for Women and Men ............................................44
3.2.4 Law on Prevention and Protection against Discrimination .................................45
3.3.1 National strategy on gender equality for 2013-2020 ..........................................45
3.3.2 National strategy on equality and non-discrimination on the grounds
of ethnicity, age, mental/physical disability and sex for 2012-2015 ...........................46
3.3.3 National strategy on reduction of poverty and social exclusion
in the Republic of Macedonia for 2010-2020 .............................................................46
3.3.4 National employment strategy 2015 ...................................................................47
3.4.1. Perception of discrimination on the grounds of sex ...........................................48
3.4.2. Reported cases of discrimination on the grounds of sex ....................................48
4. Mental and physical disability ..............................................................................50
4.1.1 UN Convention on the Rights of Persons with Disabilities ................................51
4.1.2 Council Directive 2000/78/EC establishing a general framework
for equal treatment in employment and occupation .....................................................52
4.2. National legal framework ....................................................................................53
4.2.1 Constitutional provisions ....................................................................................53
4.2.2 Law on Labor Relations ......................................................................................54
4.2.3 Law on Employment of Persons with Disability ...............................................55
4.2.4 Law on Prevention and Protection against Discrimination ................................57
4.3.1 National strategy on equal rights of persons with disabilities for 2010-2018 ....58
4.3.2 National strategy on equality and non-discrimination on the grounds
of ethnicity, age, mental/physical disability and sex for 2012-2015 ..........................58
4.3.3 National strategy on reduction of poverty and
social exclusion for 2010-2020 ...................................................................................59
4.3.4 National employment strategy 2015 ...................................................................59
6 7
T
he drafting of the Analysis of
the discriminatory practices in
the area of employment and la-
bor relations on the grounds of
ethnicity, age, sex and mental
and physical disability stems from the Nation-
al Strategy on Equality and Non-Discrimination
on the Grounds of Ethnic Origin, Age, Mental
and Physical Disability and Sex for 2012-2015
as well as from the 2013 Operational Plan for
implementation of the National Strategy on
Equality and Non-Discrimination, strategic goal
1: Improvement of the legal framework for equal
opportunities and non-discrimination.
This publication scrutinizes, from a legal
point of view, the situation with discriminatory
practices in the area of employment and labor
relations on the grounds of ethnic origin, age,
sex and mental and physical disability. The anal-
ysis was completed in the period March-Octo-
ber 2013 by a group of four authors: Ms Zane-
ta Poposka, PhD; Mr. Bekim Kadriu, PhD; Ms
Lenche Kocevska and Ms Elena Kochoska, at
the initiative of the Ministry of Labor and Social
Policy and supported by the OSCE Mission to
Skopje and the project From legislation to prac-
tice implemented under the scope of the Prog-
ress Programme of the European Union.
The challenge for this legal analysis was to
depict the situation with discriminatory practic-
es in the area of employment and labor relations
regarding the abovementioned four discrimina-
tory grounds, both from the aspect of the leg-
islation and policies as well as from the aspect
of the existing institutional framework and the
assessment of the extent to which the legislation
and the policies are harmonized with the existing
international standards. In addition, the analysis
of the actual situation for each discriminatory
ground separately is the most important part of
this whole exercise since it enables changes to
be made in both the legislation and the practice
for the purpose of overcoming the existing chal-
lenges.
The justifcation for this legal analysis lies in
the need to provide a clear picture of the legisla-
tion, policies and practices in the area of employ-
ment and labor relations with regard to discrim-
ination on the grounds of ethnic origin, age, sex
and mental and physical disability. Moreover,
the analysis of how the institutional framework
is set up and of the actual role it plays in this
whole process was of exceptional importance for
one to be able to give recommendations on how
to make improvements.
The methodology for the analysis was a com-
bination of a desk review, semi-structured inter-
views and case studies. The implementation was
overseen by the Ministry of Labor and Social
Policy, Commission for Protection against Di-
sacrimination and the OSCE Mission to Skopje.
The following general conclusions can be
drawn from the analysis:
1) The protection of the individuals in the area
of employment and labor relations, including
the protection against discrimination in this area
is relatively solid. Nevertheless, the legislation
contains inconsistences, especially with regard
to the defnitions and the exceptions to the pro-
hibition of discrimination. Moreover, the lack of
suffcient case law and quasi-case law in Mace-
donia signifcantly hinders ones ability to ex-
plain how these legal concepts (legal institutes)
stipulated in the legislation should be applied.
2) The national policies do not provide for a
uniform and strategic approach when it comes to
SUMMARY
8
4.4.1. Perception of discrimination on the grounds of mental and
physical disability .......................................................................................................60
4.4.2. Reported cases of discrimination on the grounds of mental
and physical disability ..................................................................................................61
IV. Institutional framework ......................................................................................64
1. Commission for Protection against Discrimination .................................................64
2. Ombudsman .............................................................................................................65
3. Legal representative conducting procedures to establish
unequal treatment of women and men ........................................................................67
4. State Labor Inspectorate ..........................................................................................67
V. Conclusions and recommendations ......................................................................70
ANNEX 1 METHODOLOGY ...............................................................................72
REFERENCES ...........................................................................................................76
9
the persons with mental and physical disability,
especially with regard to the employment there-
of.
3) The principle of adequate and equitable
representation continues to be implemented, but
the representation is not at the required level, es-
pecially with regard to managerial posts and the
smaller ethnic communities.
4) Ethnic discrimination is the most com-
monly perceived form of discrimination by the
citizens. In addition, the cases reported before
the protective mechanisms are mostly related to
discrimination on this ground, nd the least on
grounds of age and sex.
5) The competent authorities do not keep sep-
arate databases about discrimination on grounds
of sex, and there is lack of analyses and surveys
about the presence of discrimination on this
ground in the private sector.
6) The employment of persons with disabili-
ties in shelter companies should be a transitory
solution toward their full employment on the
open labor market; it should not derogate from
this second possibility or from the possibility to
become employed in the public sector.
As a result, the authors came up with the fol-
lowing recommendations:
1) The availability of legislation does not
achieve the desired goal by itself, which is
equality of opportunities and equality of the end
result for the persons with a certain mental and
physical disability, ethnicity, age and sex. More
specifcally, in order for the legislation to pro-
duce the desired effect for these groups of cit-
izens, it should be accompanied by additional
measures such as, for example, public aware-
ness raising activities, capacity building in the
responsible institutions, maintaining databases,
and conducting detailed analysis of the legisla-
tion and policies followed by making necessary
improvements therein.
2) Improve the legislation in terms of the
following: explicit prohibition of discriminato-
ry announcements or statements on grounds of
mental and physical disability, ethnic origin and
age; provide that instructions to discriminate
shall constitute a specifc form of discrimination
in the Labor Relations Law; specify the institute
of reasonable accommodation both in the area
of labor relations and in the anti discrimination
legislation; further regulate the exceptions to
discrimination, especially on grounds of age; en-
act provisions to protect pregnant women who
have signed an employment contract for a def-
nite period of time; and re-examine the criterion
general healt ability as one of the requirements
for employment that restricts the access for per-
sons with disabilities to jobs.
3) Create possibilities for re-examination of
the incentives provided for in article 4 of the
Law on Employment of Persons with Disabil-
ities by the courts on a case by case basis in
order to ascertain if they are meaningful, and
amend the provision in article 4- paragraph 5
of the same Law which requires expert evidence
(fndings) and opinion from the relevant Com-
mission under the Ministry of Labor and Social
Policy about the ability of a person with mental
and physical disability to carry out managerial
duties.
4) Continue with the application of the prin-
ciple of adequate and equitable representation,
with a special emphasis on the managerial func-
tions and the situation with the smaller commu-
nities.
5) The national strategies dealing with these
aspects need to be implemented in order to im-
prove the situation with discrimination, especial-
ly the one on the grounds of age and mental and
physical disability in the labor feld.
6) Raise the public awareness among private
sector employers about the discrimination of
women on the grounds of their marital status,
family status, age and pregnancy status.
INTRODUCTION
T
he right to work and to have
freedom of choice regarding
employment of every individual
on an equal footing with the
others is the basic economic
right of human beings, which is based on the
postulates of productivity and proftability of
every citizen through a freely chosen or accept-
ed employment on the open labor market. This
right is ssential in order for one to be able to
exercise the other human rights as well, and it
constitutes an inseparable part of human digni-
ty. This right is of exceptional importance for
all the people regardless of their ethnicity, sex/
gender, mental and physical disability or age,
not only for securing livelihood for oneself and
ones family, self-respect, self-realization and
independence, but also for creating a working
environment that is open, inclusive and acces-
sible for all on an equal footing. Therefore, this
right is articulated in the relevant international
human rights instruments and is a key economic
right stipulated in the national legal system and
adequately protected (Poposka, 2013, p.11).
The right to work is an individual right that
belongs to each individual, but at the same time
it is also a collective right. It includes in itself
all forms of labour, regardless of whether the
job is an independent job or a paid job, both in
the public and private sectors. Having said that,
it should not however be understood as an ab-
solute and unconditional right to employment.
Namely, it includes the right for every human
being, including persons with a particular men-
tal and physical disability, age group, ethnicity
or sex to decide freely whether to accept or not
a job or to choose a job, in other words they
should not be forced into it. It is further implied
that the job should be a decent one, i.e. a job
that respects the human rights of all the people
as well as the rights to safety at work and to
an adequate compensation for the work done.
In order for the right to work to be enjoyed in
all of its forms, several requirements must be
fulflled, such as: availability, accessibility, ac-
ceptability and quality (General Comment No.
18 to the International Covenant on Economic,
Social and Cultural Rights, 2005, pp. 4-5).
The State has the duty, similarly to the other
human rights, to respect, protect and guarantee
this right for all the people on an equal footing.
Namely, the respect for the right to work means
that States should refrain from interfering
directly or indirectly with the enjoyment of this
right; the duty to protect this right requires from
the States to undertake measures that will not
allow any third parties to affect the enjoyment
of the right to work. Finally, the duty to guar-
antee this right includes an obligation for the
State to secure and promote the right to work by
adopting adequate legislative, administrative,
budgetary, judicial and other measures aimed
at the full realization of this right on an equal
footing for all.
10 11
13
T
he principle of equality is the ba-
sic principle in the human rights
context; it is based on the equal
value and dignity of all human
beings. This principle is em-
bedded in all international and regional human
rights instruments. When talking about equality,
distinction should be made between formal and
substantive equality. Formal equality, or as it is
also called legally provided equality, implies a
formal recognition that all persons have equal
rights and freedoms guaranteed by law, and also
implies the equal application of the laws by the
state authorities. This understanding of equality
is based on the Aristotles principle that equals
should be treated equally and unequals should
be treated unequally (Aristotle, Ethica Nico-
machea, V.3), i.e. the symmetry approach. This
type of equality is considered achieved if there
is legal framework according to which all people
are equal with regard to the enjoyment of their
rights and freedoms without paying attention to
the end result, i.e. this type of equality excludes
the indirect discrimination from its concept.
On the other hand, substantive equality -
which assumes a broader interpretation of the
concept of equality - implies that the legal
equality should be implemented in everyday
life and that the results and effects of the ap-
plication of the laws, policies and practices
should not be discriminatory. Special account is
taken of the differences characterizing certain
protected groups, such as for example in cases
of pregnancy (with regard to the ground sex),
or the reasonable accommodation for the per-
sons with disability (with regard to the ground
disability). Therefore, substantive equality is
an indicator that points to the possible incon-
sistencies in the application of the formal, i.e.
legal equality. The goal of any democratic soci-
ety is to achieve, first and foremost, substantive
equality (Jovanovska-Brezoska, 2011, p.16).
This type of equality is most clearly expressed
in the theory of multidimensional inequality,
which is nowadays a very topical issue. This
theory highlights the existence of multidisci-
plinary individual and group identities which
are conducive to an increased vulnerability of
the protected individual and/or groups, vulnera-
bility that is due to the interdependence between
these identities and some complex structural so-
cial factors (Arnardttir, 2009).
Conceptually, equality and prohibition of dis-
crimination can be viewed as the positive and
the negative formulation of the same principle
(Bayefsky, 1990, page 1). Despite the fact that
legal instruments are formulated in a manner so
as to point out what is prohibited, in this case
the discrimination, this prohibition serves the
purpose of reaching the ideal of equality, which
is the ultimate purpose of the prohibition. By
looking at it a posteriori in the light of the case
law of international courts, it can be concluded
that the principle of equality and the prohibi-
tion of discrimination do not require only equal
treatment in similar situations but also different
treatment in unequal situations (European Court
of Human Rights, case Thlimmenos, 2000,
paragraph 44 of the judgment), while empha-
sizing the goal of the anti discrimination leg-
islation - not only equality of opportunities but
equality of the end result as well.
12
In modern life, discrimination is a concept
without fixed and cut-anddried boundar-
ies and should be analysed as such. The legal
definition of discrimination implies unequal
treatment based on certain personal features or
characteristics, i.e. discriminatory grounds; this
treatment includes unfounded classifications
and differentiations in a given legal context.
In the human rights context, discrimination is
the difference with regard to the enjoyment of
the rights based on different legal or informal-
ly built-in grounds and principles (Frckoski,
2005, p.57). Discrimination can be intentional
or unintentional depending on the case. It can
be a result of an individual behavior/action or
of a certain state policy, and can be even part of
the legislative framework. Whatever form dis-
crimination takes, it always includes in itself a
different, or shall we rather say less favorable
treatment of a certain group of persons vis-a-vis
the other members of the society.
This meaning comes from the very etymology
of the word discrimination, which originates
from the Latin word discriminare, discrimina-
tio, which means making a difference, differ-
entiation, classification. These differentiations
are usually based on existing stereotypes and
prejudices about a particular protected group.
However, not every differentiation is discrim-
ination. Discrimination is only the differentia-
tion that has no legitimate aim or, even if it does
have a legitimate aim, the differentiation is not
proportional to the legitimate aim that is being
pursued (ECHR, case relating to certain aspects
of the laws on the use of languages in education
in Belgium, 1968, paragraph 10).
The scope of the anti discrimination legis-
lation is determined by the following two ele-
ments: (i) the formulation of the discriminatory
grounds; and (ii) the protection of each of the
individual grounds, which depends on the justi-
fication and the exceptions allowed by the leg-
islation for each of the grounds (Schiek, Wad-
dington, Bell, 2007). Discriminatory grounds
are the protected features that an individual/
group identifies with. They are usually stipulat-
ed in the form of an open list of grounds; there
are also documents in which the discriminato-
ry grounds are listed within a closed list such
as the Directive of the Council 2000/78/,
the Directive of the Council 2000/43/, and
the EU Charter of Fundamental Rights. Setting
aside the four grounds of discrimination ad-
dressed in this analysis, the classical grounds
known in the theory include: sex, race, color
of skin, and ethnic origin. Age and mental and
physical disability are two more recent grounds
of discrimination protected by the internation-
al legislation. By virtue of being more recent,
these grounds are not explicitly mentioned in
certain important human rights instruments at
universal and regional levels.
Nevertheless, the practice has shown that the
States find it difficult to define the grounds of
discrimination, or think that they are self-ex-
planatory. As a result, the courts will need to
explain the significance of each of the grounds.
National courts are guided by the jurisprudence
of the international courts when defining the
grounds. The Court of Justice of the EU sub-
mitted that all 6 grounds covered by the anti
discrimination Directives, including the four
grounds addressed in this analysis, should be
viewed as legal concepts of the EU that require
both an autonomous and a joint interpretation,
bearing in mind the context of the provision and
the goal that the legislator wanted to achieve
(CJEU, case Chacn Navas, 2006, paragraph
40).
Defining the grounds is of exceptional impor-
tance because it is associated with the defining
of the protected group. When talking about the
protected group it should be noted that the defi-
nition ought to prohibit discrimination on the
ground of a protected characteristic (in our case
ethnicity, sex, age or mental and physical dis-
ability) rather than to protect the persons with
that particular characteristic. This would open
the room for protecting the persons that are as-
sumed to have the particular characteristic
1
as
well as the persons that are closely connected
with the person featuring a protected charac-
I
SUBJECT OF
ANALYSIS
teristic and that can be discriminated against
because of that (for example: parent of child
with mental and physical disability, friend of a
person with a specific ethnicity, etc). The pro-
tection of the persons that are closely connect-
ed with a disabled person and that can be dis-
criminated against because of that is very much
compatible with the tendency in the EU law
substantiated by the judgement of the Court of
Justice of the EU in the case Coleman, in which
the Court submitted that the Directive 2000/78/
prohibited any direct discrimination of a
mother of a child with a mental and physical
disability when the discrimination is based on
the disability of her child (discrimination by
association). Discrimination by association is
explicitly mentioned in several national legis-
lations, such as for example in Ireland, Sweden,
Austria, Bulgaria and France (Poposka, 2012,
pp. 27-28).
Finally, when talking about protected groups
it should be mentioned that one person can of-
ten encompass several protected characteris-
tics; it can be easily assumed that unequal treat-
ment can occur simultaneously on a number of
grounds. These are cases of multiple discrim-
ination, i.e. discrimination on more than one
ground, which is not the sum of two discrim-
inatory grounds, but what matters here is the
very end result which is quantitatively different,
i.e. synergetic. As a result, due to this syner-
getic trait of the multiple discrimination, it is
very difficult to expect any emerging of specific
policies and legal solutions for this phenome-
non. There are two distinct types of multiple
discrimination. The first is called cumulative or
additional discrimination which occurs in cases
of overlapping of the discriminatory grounds
(Hannett, 2003). The second type is called in-
ter-sectoral discrimination which occurs in the
event of a unique combination of discriminato-
ry grounds, nd it is located on the crossroad
between the individual grounds protected by the
anti discrimination legislation (Fredman, 2005,
pp. 13-19). Despite the fact that cases of multi-
ple discrimination are nothing new, the existing
anti discrimination legislation is unable to solve
this issue because this legislation is designed in
a way so as to perceive discrimination as a sin-
gle problem. It is exactly here where the par-
adox lies, i.e. the more a person differentiates
from the normal picture, the more likely it
becomes that he/she will be victim of multiple
discrimination, and at the same time it is less
likely that he/she will receive adequate protec-
tion against this type of discrimination.
Discrimination can appear in a number of
forms, but it usually appears as direct or indi-
rect discrimination, regardless of whether this
is stipulated in the law or determined by the
case law. Harassement and instruction to dis-
criminate are among the more recent forms of
discrimination, and they are included primarily
in the anti discrimination legislation of the EU.
The protection against discrimination is ex-
tremely important in the area of employment
and labor, which is the subject of this analysis.
Namely, the State is required to recognize the
right of the persons with a mental and physical
disability, different age group, ethnicity or sex
to use, on equal footing with the others, the pos-
sibility to make for a living through work, i.e.
through a freely chosen and accepted job on the
open and inclusive labor market. On the list of
measures that the State needs to take in order to
enable that this right be enjoyed, the measure
No.1 is the prohibition of discrimination on the
abovementioned grounds in all forms, sectors
and levels of work. Standards require that dis-
crimination be prohibited with regard to: the
conditions for accessing a certain job, self-em-
ployment or occupation, including the criteria
for selection of candidates for employment; car-
rier promotions; access to all kinds and levels
of professional counselings, training, advanced
professional training and advanced vocational
training, including practical work experience;
conditions for employment and work, including
the salary and other compensations as well as
firing; becoming member and participating in
the activities of trade unions and employers or-
ganizations or other professional organizations,
as well as regarding the benefits from the mem-
bership. The same principle applies to the pro-
hibition of harassment. In addition, the States
should provide reasonable accommodation for
the persons with mental and physical disability
at the workplace; to this end, the States should
stipulate in their national legislation what the
elements of the accommodation are, as well as
the facts based on which one shall evaluate if
the accommodation was appropriate/reason-
able. Furthermore, the prohibition of discrim-
inatory announcements or statements on a dis-
criminatory ground is fully supported (CJEU,
the case of Firma Feryn, 2008).
It follows from the above that the subject
of this analysis is to shed light on the existing
discriminatory practices in the area of employ-
ment and labor, based on the four grounds of
discrimination that are specified in the Law on
Prevention and Protection against Discrimina-
tion. This constitutes the main thematic focus
of the analysis.
14 15
(1) According to the opinion of the authors, the goal of the anti discrimination legislation is to protect the individuals
against discrimination, and whether the discrimination is based on actual or assumed protected characteristic is totally
irrelevant. However, the Directive 2000/78/ does not include explicit protection against discrimination on grounds of
an assumed characteristic, unlike the ECHRs interpretation of Article 14 of the ECHR in the case Timishev v. Russia.
Countries that allow such protection: Austria, Hungary, Ireland, Czech Republic, Bulgaria, Belgium, Croatia, Nether-
lands (only for disability, Malta (only for disability), Slovakia (only for disability).
17 16
As far as the national legislation is concerned,
over the past several years the State has devel-
oped an anti discrimination legal framework that
can be considered as a relatively solid founda-
tion based on which case law will be generated
in the future.
Article 9 of the Constitution of the Republic
of Macedonia contains a general clause about
equality which envisages that [the] citizens of
the Republic of Macedonia are equal in their
freedoms and rights regardless of their sex, race,
color of skin, national and social origin, politi-
cal and religious belief and property and social
status. The citizens are equal before the Consti-
tution and the laws (Constitution, 1991, article
9). However, this provision has been widely crit-
icized because it uses the word citizens, which
leaves the impression that aliens (persons without
citizenship and those with a foreign country citi-
zenship) are not protected against discrimination
according to this provision. In addition, article
9 does not include some discriminatory grounds
that are topical nowadays, such as age or mental
and physical disability, and on the top of it, the
list of discriminatory grounds is a closed one.
Finally, bearing in mind that article 9 pertains
to the rights and freedoms of the human being
and the citizen, i.e. natural persons, it does not
provide for protection of legal persons against
discrimination. In addition to these critiques, the
Constitutional Court has interpreted this clause
quite restrictively for many years when acting
in accordance with article 110 paragraph 3, i.e.
upon the submitted requests for protection of the
human rights and fredoms, which can be clearly
seen in the fact that the Constitutional Court de-
clared itself incompetent in almost all the cases
of alleged discrimination as well as in the fact
that this Court failed to decide on the merits of
the cases (Review of the work of the Constitu-
tional Court for 2012, 2013, pp.32-35).
As a result, the national legislation began with
explicit prohibition of discrimination through
the enactment of several laws, among which
especially important were those in the area of
labor, which culminated in 2010 with the enact-
ment of the Law on Prevention and Protection
against Discrimination (LPPD).
This Law is expected to fll the legal gaps that
exist in our legal system in the area of non-dis-
crimination, and to provide for a more readily
available legal protection for all the persons that
would appear as alleged victims of discrimina-
tion. In addition to the mentioned discriminatory
grounds such as sex, race, color of skin, gender,
affliation of a marginalized group, ethnic or-
igin, language, citizenship, social origin, reli-
gious belief, other beliefs, education, political
affliation, personal or social status, mental and
physical disability, age, family or marital status,
property status and health status, this law pro-
vides in its article 3 for an open list of grounds
with the phrase or any other ground.
The LPPD prohibits all forms of discrimina-
tion, including direct and indirect discrimination
(article 6), harassment (article 7), instruction to
discriminate (article 9), and victimization (arti-
cle 10), committed by natural and legal persons
both in the public and private sectors, in the
areas of employment and labor, education, ac-
cess to goods and services, housing, health care,
social protection, administration, judiciary, sci-
ence, sports, membership and activities in trade
unions, political parties and civil society organi-
zations and other areas, accordingly (article 4).
However, the Law does not explicitly prohibit
discriminatory announcements or statements on
the grounds of age or mental and physical dis-
ability. This should be changed and harmonized
with the international anti discrimination stan-
dards in the future. In addition, article 12 of the
LPPD views multiple discrimination as a more
severe form of discrimination, i.e. discrimina-
tion against a certain person on several discrimi-
natory grounds occurring at the same time. This
is of exceptional importance because every hu-
man being has different personal characteristics
which can lead in many cases to whats known
as cumulative or cross-cutting discrimination.
The process of adopting this Law was quite con-
troversial and its full harmonization with the EU
legislation is still a debatable issue (2011 Prog-
ress report, pp. 55 and 63).
Direct discrimination on some discriminatory
ground is prohibited in accordance with arti-
cle 6 paragraph 1 of the LPPD. It occurs when
a person was treated less favourably by means
of differentiation, exclusion or restriction that
results in or could result in his/her rights being
taken away, interfered with or limited vis-a-vis
another person in a comparable situation, just
because of his/her ethnicity, sex, age or mental
and physical disability. This defnition is not in
full compliance with the Directive 2000/78/
because of the wording results in or could result
in, thus omitting resulted in. On the top of it,
the defnition names the types of less favorable
treatment thus adding the risk of omitting some
type of treatment, which could later backfre if
the courts proceed with restrictive interpretation.
This defnition should be fne-tuned in order to
clearly refect all three elements of direct dis-
crimination.
Regarding the existence of a general justi-
fcation for direct discrimination, it should be
mentioned that the LPPD does not provide for
it. On the other hand, the anti discrimination leg-
islation contains a large number of general ex-
ceptions provided for in the articles 13-15. For
illustration, an action shall not be considered as
discrimination in the following cases: if it is a
measure provided by law that aims to encour-
age employment (article 15 paragraph 1 point 2);
when laying down a genuine and determining re-
quirement for a job (article 14 paragraph 1 point
2); with the special cases requiring affrmative
measures (article 13); the different treatment of
the persons with mental and physical disabili-
ties in terms of receiving training and education,
with a view to satisfying their special education-
al needs in order to create equal opportunities
(article 15 paragraph 1 point 3); and when pro-
viding the special protection envisaged by law
(article 15 paragraph 1 point 7), etc.
2
Indirect discrimination on a discriminatory
ground is prohibited in accordance with arti-
cle 6 paragraph 2 of the Law. It occurs when a
seemingly neutral provision, criterion or prac-
tice places, inter alia, a person with a particu-
lar ethnicity, age, sex or mental and physical
disability or a wider group of these persons in a
particularly unfavorable position compared with
other persons, except if that provision, criterion
or practice arises from a justifed goal and the
means to achieve this goal are appropriate and
necessary. This defnition is not in full compli-
ance with the Directive 2000/78/ because it
envisages that the protected characteristic only
places the persons in a particularly unfavourable
position, nd not places or could place them in
a particularly unfavourable position. The Law
provides a possibility for a general justifcation
II
THE LAW ON PREVENTION
AND PROTECTION AGAINST
DISCRIMINATION
(2) Especially debatable is the exception specifed in article 14 paragraph 1 point 7 of the Law which relates to the
freedom of speech, public appearance, opinion and informing of the public, which is not bound by the requirement
for necessity and proportionality, but is an absolute exception. So defned, this exception is problematic from a point
of view of the international standards because the freedom of expression is not absolute, but is something that can be
restricted. One of the reasons for restricting it is the protection of the freedoms and the rights of the others, including
the right to equality and nondiscrimination. Absolute freedom of expression is in contradiction with the instruction/
incitement to discriminate which is prohibited both by the Law on Prevention and Protection against Discrimination
and by the Criminal Code.
19 18
of indirect discrimination depending on the ex-
istence of a justifed goal and of the so-called
proportionality test. It should be noted that the
courts should play a key role when resolving the
dilemma about the extent to which members of
a group have been affected in cases of indirect
discrimination. In this regard, it is not explicit-
ly forbidden to use statistical data when proving
these cases, and the authors think that statistical
data could be admissible as evidence in court
proceedings provided that the Court has decided
on it freely and given this statistical data faith.
Harassment on a discrimination ground is pro-
hibited by article 7 of the Law, which defnes it
as a special form of discrimination. Harassment
and humiliating treatment constitute a violation
of the dignity of a person or of a group of per-
sons. It arises from the discriminatory ground
and has as a goal or as an end result violation of
the dignity of the respective person or creation of
a threatening, hostile, humiliating or intimidat-
ing environment, approach or practice. Harass-
ment is defned more broadly so as to encompass
violation of the dignity not only of an individ-
ual but also of a group of persons sharing the
protected characteristic. However, the defnition
does not mention that harassment is an undesired
treatment, which means that there can be no vic-
tim of harassment if the individual wanted and
approved of that behavior. While the LPPD is
unclear about the question as to who can harass,
a partial answer to this question is provided in
the Labor Relations Law where it is stipulated
that the perpetrator of a psychological harass-
ment at work (mobbing) can be one or more
individuals in the capacity of an employer who
can appear as a natural person, a responsible per-
son or a worker (article 9- paragraph 4). When
talking about harassment, it should be added that
our legislation does not give a clear answer to
the question of responsibility of the responsible
person (the employer or the service provider)
for the harassment committed by third parties.
However, it is considered that the responsibility
of the employer for the actions of third parties,
including for harassment, will depend to a large
extent on the nature of their relationship as well
as on the future case law regarding this particular
issue (The European Network of Legal Experts
in the Non-Discrimination Field, 2010, p. 43).
Instruction to discriminate (which is called
aiding and encouraging discrimination) is pro-
hibited pursuant to article 9 of the LPPD as a
special form of discrimination. In this regard
article 9 covers both the direct and the indirect
incitement, encouragement or instruction to dis-
criminate against someone.
Important provisions for the persons with
mental and physical disability are article 5
paragraph 1 point 12 and article 8 paragraph 2
(which provides for reasonable accommoda-
tion). Namely, the LPPD stipulates that adjust-
ing the infrastructure and the services means to
undertake adequate measures that are necessary
in a case in order to enable the person with men-
tal and physical disability to access, participate
and advance in the work process, except unless
these measures impose a disproportional burden
on the employers. This provision is criticized
because it is limiting in nature, i.e. because it
refers only to the adjustment of the infrastruc-
ture and services. Furthermore, the LPPD does
not defne the term adequate measures for the
persons with mental and physical disability; in-
stead, it only explains that these measures are
tailored to the specifc 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 fnally, with regard to the issue
of disproportional burden as formulated in this
law, the national legislation fails to analyze this
burden by putting it in correlation with, as the
case is in others states, with the size and the sta-
tus of the legal person (state or privately owned),
the volume of the fnancial outlays, the fnancial
sources of the employer and the possibility to
receive funds from public sources or any other
assistance. This clarifcation 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
unjustifed absence of reasonable accommo-
dation is considered a form of discrimination
(Poposka, 2012, pp.302-303).
With regard to the procedural provisions, the
shifting of the burden of proof is explicitly men-
tioned in the Law. In addition, the articles 16-33
of the Law provide for the establishment of an
equality body the Commission for Protection
against Discrimination - and regulate the pro-
cedure before this body
.3
The national system
provides for 3 procedures in cases of an alleged
discrimination: (i) administrative procedure
(before the Commission for Protection against
Discrimination pursuant to articles 25-28 of the
LPPD and before the Ombudsman pursuant to
articles 13-27 of the Law on the Ombudsman);
(ii) litigation (pursuant to articles 34-41 of the
LPPD); and (iii) misdemeanor procedure (pursu-
ant to articles 42-45 of the LPPD).
We would conclude by saying that the LPPD,
notwithstanding some weaknesses mentioned
above, is a relatively solid framework for pro-
tection against discrimination based on which
relevant case law can be generated, and it can
help to defne the boundaries of the new legal
institutes laid down therein.
(3) More information about the Commission can be found in section IV of this analytical paper: Institutional frame-
work, Heading 1: Commission for Protection against Discrimination.
21 20
DISCRIMINATION IN THE
FIELD OF EMPLOYMENT
AND LABOR
Discrimination on the ground of ethnicity oc-
curs in the cases where individuals are excluded
or restricted in terms of the possibility to use or
enjoy a certain right only because they belong
(or do not belong) to a specifc ethnic commu-
nity or group. If this is transposed into the realm
of labor relations, it means that ethnic discrimi-
nation occurs when a worker or a candidate for a
job is excluded or limited in the use of the right
to employment or another right arising from em-
ployment just because of his/her ethnicity.
A number of indicators show that discrim-
ination on the ground of ethnic origin is quite
present in the Republic of Macedonia. This con-
clusion can be derived from: the perception of
the citizens (Petrovsk Beska, Najcevska, 2009,
p.13; Krzalovski, 2011, p. 10); the reported cas-
es of discrimination before the Commission for
Protection against Discrimination and before the
Ombudsmans Offce (Ombudsmans Offce,
Annual report for 2009, 2010, 2011, 2012; Com-
mission for protection against discrimination,
Annual report for 2011 and 2012); and from the
reports prepared by well known international or-
ganizations (C, Progress report for Macedonia
for 2012, p.18).
Of special importance for the Republic of
Macedonia is the constitutional principle of ade-
quate and equitable representation of the citizens
from all communities in the state administration
authorities and other public institutions at all
levels (Amendment VI to the Constitution of the
Ro). This principle has a direct bearing on the
equality nd non-discrimination of the non-ma-
jority communities members in the Republic of
Macedonia, and therefore it is a subject of this
study.
1.1.
INTERNATIONAL
LEGAL STANDARDS
In the process of developing the international
law after the Second World War, the internation-
al community embraced the need for adopting
a special instrument for protection against dis-
crimination on the ground of ethnic origin (as
part of the defnition of race). To this end, the
Convention on Elimination of all forms of Ra-
cial Discrimination (CERD) was adopted. This
Convention refers to discrimination on grounds
of race, but the defnition of race includes ex-
plicitly the ethnic origin as a discriminatory
ground (CERD, article 1).
1.1.1. United Nations Con-
vention on Elimination of all
forms of Racial Discrimina-
tion
CERD was adopted by the United Nations in
1966. As of September 2013, it has been ratifed
by 176 states, including Macedonia.
4
It also ap-
plies to economic and social rights such as the
right to work, free choice of work, conditions for
work, protection against unemployment, equal
Ethnicity
1
pay, the right to establish and be a member of
trade unions, etc. (CERD, article 5..)
The starting point for CERD in defning dis-
crimination were the defnitions in the Conven-
tions of the International Labor Organization
(ILO) and UNESCO relating to discrimination
in the labor and education areas, respectively. In
this Convention, racial discrimination is defned
as any distinction, exclusion, restriction or pref-
erence based on race, colour, descent, or national
or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoy-
ment or exercise, on an equal footing, of human
rights and fundamental freedoms (CERD, arti-
cle 1.1.).
According to CERD, whether a person be-
longs or not to a certain ethnic group depends
on their personal declaration unless the opposite
is proven. The State may not determine by itself
which persons belong to a certain ethnic group
(Comity on the Elimination of Racial Discrimi-
nation, General Comment VIII, 1990). The State
may not even determine which groups are ethnic
ones, and as result of that to enjoy protection ac-
cording to the Convention. This is done on the
basis of objective criteria and does not depend
on the will and recognition by the State. Accord-
ing to the Comity on the Elimination of Racial
Discrimination, the use of different criteria can
lead to a different treatment of the groups within
one same population (Comity on the Elimination
of Racial Discrimination, General Comment
XXIV, 1999, paragraphs 1 and 2).
Important provisions in the CERD are the
following: article 2.2, which relates to the ap-
plication of special measures; article 1.4, which
relates to affrmative actions; article 1.1, which
prohibits any differentiation done with the aim to
or having as a consequence (effect) the denial of
the recognition, enjoyment or realization of the
rights and freedoms under equal conditions. This
last sentence de facto encompasses the indirect
discrimination, which otherwise is not explicitly
mentioned in the CERD. Through the provisions
enabling special measures and affrmative ac-
tions, the CERD promotes the so-called factual
equality which takes into account the different
starting points of the individuals and the former
subordination that contributed to the occurrence
of systemic discrimination in the society, which
could continue to exist and to perpetuate dis-
crimination if the State pursues a neutral policy.
These provisions are important in view of the
existence and the justifcation of the measures
undertaken in the Republic of Macedonia with
a view to achieving adequate and equitable rep-
resentation of the members of all communities.
However, the basic characteristic of the spe-
cial measures and of the affrmative actions
according to the CERD is their limited nature.
These measures are envisaged only with a view
to enabling the enjoyment of the freedoms and
rights under equal conditions; they are not tanta-
mount to discrimination, i.e. they are considered
to be justifed measures of differentiation with a
legitimate aim according to the CERD; they are
limited from the aspect of time as well as areas
of application. They are applied where it is need-
ed and for the amount of time needed. They must
not continue after their goal has been fulflled
because it would mean unnecessary favouring of
the ethnic group(s) to the beneft of which they
were initiated in the frst place. The CERD le-
gal framework should be the benchmark for the
Republic of Macedonia when applying the prin-
ciple of adequate and equitable representation.
As it was mentioned, the concept of discrim-
ination in the CERD encompasses the indirect
discrimination as well. CERD also prohibits the
discrimination occurring in the private sector,
i.e. committed by private entities in the society
(CERD, article 2.1.e). This is especially import-
ant because of the fact that workers are often dis-
criminated against by private employers in the
Republic of Macedonia.
1.1.2. ILO Convention con-
cerning Discrimination in
Respect of Employment
and Occupation
The International Labor Organization (ILO)
has adopted a special Convention relating to the
protection against discrimination in the labor
arena. This is the Convention 111 of the ILO,
which prohibits discrimination in the labor feld
and provides for things such as access to voca-
tional training and advanced training necessary
for acquiring specifc professional qualifcations,
access to employment and to particular occupa-
tions, and terms and conditions of employment
III
22
(Convention 111 of the ILO, article 1 paragraph
3).
Even though ethnicity is not explicitly men-
tioned, we consider it to be part of the ground
race bearing in mind the defnition of this
concept in the international human rights instru-
ments.
1.1.3. CHR and Protocol
12 to the Convention and
the European Social Char-
ter
These three international agreements were ad-
opted by the Council of Europe. They have been
ratifed by the Republic of Macedonia. They do
not have equal importance for the discrimination
on the ground of ethnic origin in the labor feld.
Namely, the European Convention on Human
Rights (CHR) contains an anti discrimination
clause in article 14. The ethnic origin is again
not explicitly mentioned in this clause, but it is
certainly covered by the concept of race.
The anti discrimination clause in article 14 is
of accessory nature. Notably, it protects against
discrimination only with regard to the rights pro-
vided for in the CHR. Bearing in mind that the
CHR does not guarantee any right stemming
from employment, the anti discrimination clause
in article 14 is not of great signifcance for this
study.
On the other hand, Protocol 12 to the CHR
features a general prohibition of discrimination.
The list of discriminatory grounds is the same as
the one in article 14 of the CHR, so it can be in-
terpreted that ethnicity is covered by the concept
of race. The important characteristic of Pro-
tocol 12 is that it includes a general prohibition
of discrimination in all areas of life in a society.
This means that Protocol 12 broadens the scope
of application of article 14 of the CHR beyond
the rights stipulated in the Convention. The im-
portant thing for our study is that this protocol
also applies to the rights stemming from employ-
ment. The Republic of Macedonia has ratifed it.
However, its recent entry into force (in 2005)
and the small number of states that have ratifed
it
5
are two factors that contributed to the scarci-
ty of case law of the European Court of Human
Rights in this feld. However, this is something
that should change in the future bearing in mind
the broad substantive scope of Protocol 12.
The revised European Social Charter includes
a detailed list of economic and social rights,
such as the right to work, the right to equal con-
ditions for work, the right to a fair salary, the
right of the workers to be organized, the right
to vocational training, etc. Article of section
5 provides for an obligation of the States to en-
sure that the rights enshrined in the Charter are
enjoyed without any discrimination. The race as
a separate discriminatory ground is mentioned in
the same clause and it undoubtedly covers the
ethnic origin.
This instrument is signifcant for the Republic
of Macedonia for the fact that it was ratifed in
2012, when it also came into force.
6
1.1.4. Council Directive
2000/43/ implementing
the principle of equal treat-
ment between persons irre-
spective of racial or ethnic
origin
Article 13 of the Amsterdam Treaty provides
that EU institutions have a direct competence
to adopt protective measures against discrim-
ination on grounds of sex, racial or ethnic ori-
gin, religion or belief, age, disability and sexual
orientation, in areas as envisaged in the EU law.
Bearing in mind that article 13 gives discretion
to the Council with regard to the selection of
the measures, the Council adopted the Directive
2000/43/ in 2000. The purpose of the Direc-
tive is to regulate in a direct manner the issues
around the prohibition of discriminatory behav-
iors and protection against discrimination.
The other grounds are not covered by this
Directive. It relates only to discrimination on
grounds of racial or ethnic origin. Other Direc-
tives exists for the other grounds, and these are
discussed in the text below. This is one of the
rare instruments that enumerate the ethnic origin
as a separate discriminatory ground.
The Directive prohibits both direct nd indi-
rect discrimination (article 2.2. and b). In order
to prove direct discrimination it is necessary to
fnd a comparator, i.. an individual who is in a
similar situation, in comparison with whom the
applicant was treated less favorably. Direct dis-
crimination on grounds of race or ethnic origin
may not be justifed under any circumstances,
except in the cases of the genuine and determin-
ing occupational requirements (article 4) or for
the purpose of taking positive action (article 5).
The Directive also prohibits the indirect dis-
crimination. In order to prove the latter, it needs
to be concluded that a certain neutral provision,
criterion or practice has produced by virtue of
being applied a particularly unfavorable effect
on the members of a certain racial or ethnic
groups (in comparison with the members of the
other groups). In order to establish the existence
of indirect discrimination one needs to demon-
strate how (i.e. in what ways) the members of
the discriminated group were disproportionally
affected by the use of neutral provisions, criteria
or practices. Indirect discrimination can be justi-
fed in cases when the differentiation (criterion,
provisions, practice) had a legitimate purpose
nd the measures undertaken were necessary and
appropriate.
The defnitions of direct and indirect discrim-
ination, harassment, instruction to discriminate
and victimization in the EU Directives, in-
cluding in this particular Directive, should be
a benchmark for the exercise of defning these
concepts in our legislation. The legal inconsis-
tencies that exist in our legislation should be re-
solved by looking at the EU Directives and at
their defnitions of discrimination. Any dilemma
that may appear should be resolved in the light
of these defnitions.
The substantive scope of the Directive is de-
termined in its article 3. The Directive applies to
labor relations, including conditions for access
to employment and to self-employment, selec-
tion criteria, promotion, access to all levels of
vocational training, advanced vocational train-
ing and re-training including practical work ex-
perience, employment and working conditions,
dismissals, pay, membership of and involvement
in organizations of employers and workers, etc.
The Directive also applies to areas outside labor
(education, social protection, social security,
health care, access to goods and services, hous-
ing), which differentiates it from the Directive
2000/78/ on Equal Treatment in Respect of
Employment and Occupation.
Article 4 provides for a limited exception to
the prohibition of discrimination whereby differ-
ence in the treatment on the ground of racial or
ethnic origin is allowed only if it constitutes a
genuine and determining requirement for a cer-
tain job (these are exceptional cases, like for ex-
ample actor who plays a certain fgure).
Article 5 provides for positive action, which
means that one follows here the stance accept-
ed within the EU regarding positive measures in
the sense that Member States are not obliged to,
but they may adopt or maintain measures with
a view to preventing or making up for the un-
favorable treatment related to racial or ethnic
origin. In line with their temporary nature, those
positive measures should last until the time of
reaching full equality. The positive measures
envisaged in article 5 of the Directive are im-
portant for the Republic of Macedonia to justify
the measures undertaken with a view to imple-
menting the principle of adequate and equitable
representation.
The Directive also provides for a special pro-
tective mechanism, which the Member States
should implement in their legal systems. First of
all, the Member States should enable access to
judicial and administrative proceedings to per-
sons who think that they are victims of discrim-
ination. In the event where the alleged victim
submits evidence and thus renders the existence
of an unfavorable treatment probable, the bur-
23
(4) For this, please go to the website of the United Nations related to international agreements, http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en.
(5) As of September 2013, Protocol 12 to the ECHR was ratifed by 18 member states of the Council of Europe.
Among them are the following countries: Albania, Andorra, Macedonia, Serbia, Montenegro, Croatia, Bosnia and Hece-
govina, Estonia, San Marino, Romania, Ukraine, Slovenia, Spain etc. Please go to: http://conventions.coe.int/Treaty/
Commun/ChercheSig.asp?NT=177&CM=&DF=&CL=ENG
(6) As of September 2013, the revised European Social Charter was ratifed by 22 member states of the Council of
Europe. Concerning this please go to: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=163&CM=&D-
F=&CL=ENG.
den of proof is shifted on the defendant who will
need to prove the opposite, that is that there was
no discrimination (Directive 2000/43/, article
8.1.).
With this Directive, the States have commit-
ted themselves to establishing bodies that will
have the duty to promote the concept of equality
regardless of someones racial or ethnic origin.
These bodies shall also have the duty to provide
assistance to victims of discrimination in court
proceedings, conduct surveys and publish inde-
pendent reports about aspects related to discrim-
ination as envisaged in this Directive (Directive
2000/43/, article 13). This article of the Di-
rective has been fully implemented in the Re-
public of Macedonia with the Law on Prevention
and Protection against Discrimination (LPPD)
and with the establishment of the Commission
for Protection against Discrimination.
The case law of the Court of Justice of the EU
is rich with regard to the application of the Di-
rective in the labor arena. For example, in the
case Firma Feryn, the Court found direct dis-
crimination in the case where the employer pub-
licly stated that he would not hire workers of a
particular ethnic origin because such statements
usually deter certain workers from applying for
the job, whereby their access to the labor market
is impeded (CJEU, Firma Feryn, paragraph 28).
1.2.
NATIONAL LEGAL
FRAMEWORK
Members of several ethnic communities live
in the Republic of Macedonia. The issue of eth-
nic discrimination and the regulation thereof in
the legislation is not something new or unknown
in our country. Provisions related to racial i.e.
ethnic discrimination have been there for quite
some time. In spite of this, in order to implement
the EU Directives in this area, Macedonia pro-
ceeded with the adoption of a comprehensive
legislation on protection against discrimination
on the ground of ethnic origin. We are referring
here to the LPPD and to the specifc anti discrim-
ination provisions in the Labor Relations Law.
1.2.1. Constitutional provi-
sions
Article 9 of the Constitution of the Republic
of Macedonia guarantees the right to equality.
This provision serves as a constitutional basis
for adopting the anti discrimination legislation.
As for the discriminatory grounds, article 9 men-
tions race and national origin thus we consider
ethnic origin included as a protected ground. We
are however of the opinion that this anti dis-
crimination clause should undergo modifcation
so as to explicitly mention the ethnic origin as a
ground.
Of importance is the Amendment VI to the
Constitution of the Republic of Macedonia,
which enumerates the principle of adequate and
equitable representation of the citizens from all
the communities in the state administration bod-
ies and other public institutions at all levels as a
fundamental value of the constitutional order of
the country (Amendment VI to the Constitution
of the RM).
1.2.2. Law on Labor Rela-
tions
The Law on Labor Relations is a substantive
law that includes anti discrimination provisions
relative to labor relations. As mentioned above,
this Law includes defnitions of direct and indi-
rect discrimination (article 7), defnition of ha-
rassment (article 9), exceptions to discrimination
(article 8), the shifting of the burden of proof
(article 11), damages for discrimination suffered
(article 10) as well as the possibility for applying
affrmative measures in order to protect some
categories of workers (article 8 paragraph 2).
The general prohibition of discrimination pro-
vides that the employer must not place the ap-
plicant for a job or the worker in an unequal po-
sition because of their racial or ethnic origin...
(article 6). The ethnic origin is hereby explicitly
listed as a ground in the Labor Relations Law,
which happens as a result of the direct infuence
of the Directive 2000/43/ implementing the
principle of equal treatment between persons
irrespective of racial or ethnic origin. As for ex-
ceptions, the Labor Relations Law provides only
for the genuine and determining requirement
for employment (article 8 paragraph 1) as a
possible exception to the prohibition of discrim-
ination. This Law however does not provide for
the possibility of applying positive measures in
terms of employing members of ethnic groups
whose position in the society is unfavorable,
which is a shortcoming thereof.
1.2.3. Law on Prevention
and Protection against Dis-
crimination
The LPPD explicitly mentions the ethnic ori-
gin as a separate discriminatory ground in article
3. In addition, the LPPD prohibits discrimina-
tion in all the areas specifed by the Directive
2000/43/.
It needs to be highlighted that the LPPD pro-
vides for exceptions with regard to the ethnic
origin ground of discrimination. The following
should be mentioned here: the genuine and deter-
mining requirement for employment (article 14
paragraph 1 point 2); the special measures aim-
ing to equalize the position of the persons from
a particular ethnic group that is such because of
unfavorable discriminatory treatment (article 15
paragraph 1 point 6); and the measures for pro-
tecting the identity of the ethnic minorities (arti-
cle 15 paragraph 1 point 8). It is on the basis of
these provisions that the measures for adequate
and equitable representation pplied in the Re-
public of Macedonia can be justifed.
1.2.4. Legislation for implementing the princi-
ple of equitable representation
Following the adoption of the Amendment VI
to the Constitution of the Republic of Macedonia
in 2001, the country proceeded with the adop-
tion and implementation of legislation aimed to
achieve adequate and equitable representation
of the members of all ethnic communities in the
public administration (in the broader sense of
the word). Provisions implementing the consti-
tutional principle of adequate and equitable rep-
resentation are included, for example, in the Law
on the Courts (article 43 paragraph 2), the Law
on Civil Servants (article 12), the Law on the
Public Prosecutors Offce (article 43 paragraph
2, article 76 paragraph 5) as well as in a number
of other laws.
These interventions in our legislation can be
justifed in the light of the LPPD, more specif-
ically the provision in article 15 paragraph 1
point 6. They can also be justifed in the light
of the CERD and the Directive 2000/43/
implementing the principle of equal treatment
between persons irrespective of racial or ethnic
origin. What is delicate about the application of
this principle is the fact that it needs to be com-
bined with some objective criteria for employ-
ment (education, length of service, expertise,
skills, competence, professionalism) (Strategy
on adequate and equitable representation of the
members of the non-majority communities in
the RoM, 2007, p. 10). On the other hand, an-
other delicate issue is the question as to when
it will be considered that this principle has been
implemented. Will it depend on the number of
newly employed members of the non-majority
communities at the level of the entire public ad-
ministration, or by area, or maybe by institution?
And the question that follows up to the previous
one is whether at one point in time - when the
targets are met - this principle will stop being
applied, and then over time if the numbers drop
again - will such measures need to be resumed?
These questions are currently left without an-
swers, but the theoretical background to this is
that these measures are permitted for as long as
they are needed for the goal which is being pur-
sued, and they must not be converted into un-
necessary privileges for particular groups. In any
case, these measures can be subject of judicial
control with regard to the question as to whether
they fulfll the requirement of proportionality,
which is required by article 13 paragraph 1 of
the LPPD.
1.3.
NATIONAL POLICIES
The Government of the Republic of Mace-
donia, together with the responsible ministries,
has adopted national strategies that have direct
24 25
or indirect effects on non-discrimination on the
ground of ethnic origin. The most important
ones among them are analyzed below.
1.3.1. National strategies
on equality and non-dis-
crimination on the grounds
of ethnic origin, age, men-
tal and physical disability
and sex 2012-2015
This national strategy was adopted in 2012
for the period 2012-2015. It is important to note
that this strategy refers to four discriminatory
grounds, including the ethnic origin, but it has
a broader substantive scope than just the labor
area. The general strategic goals such as raising
the awareness so as to be able to recognize a case
of discrimination, or improving the legal frame-
work on non-discrimination have a bearing, in-
ter alia, on the ethnic discrimination in the labor
relations feld. Among the strategic goals, those
that are important for non-discrimination on the
ground of ethnic origin in the labor feld are as
follows: improved record-keeping on discrimi-
nation on the ground of ethnic origin in all the
areas, and full implementation of the principle
of adequate and equitable representation of the
members of all communities (National Strategy
on Equality and Non-Discrimination, p. 20-23).
1.3.2. National strategy on
equitable representation
The Government adopted this strategy on
equitable representation in 2007. It defnes the
goals and the manner in which the principle of
equitable representation should be implemented.
It also specifes the methods and instruments for
encouraging the implementation of this princi-
ple in the following sectors: the civil service, the
public servants and the public enterprises. The
strategy envisages the development of a National
Plan for Employment according to the principle
of equitable representation in the public sector.
1.4.
SITUATION ANALYSIS
This part of the study wants to show what
the situation is like with discrimination on the
ground of ethnic origin in the labor area. It wants
to give answers to the questions as to whether
discrimination exists, in which forms it appears,
if the victims recognize it, if any case has been
reported, and what the number of the reported
cases is vis-a-vis the overall number of report-
ed cases of discrimination (the ratio). For better
visibility, this section will be divided into: (i)
perception about the existence of ethnic discrim-
ination, (ii) cases reported before the relevant in-
stitutions, and (iii) application of the principle of
adequate and equitable representation.
1.4.1. Perception about eth-
nic discrimination
There is perception among the citizens that
ethnic discrimination is one of the most com-
mon forms of discrimination in the Republic of
Macedonia. As a result, the survey Barometer for
equal opportunities ranks the discrimination on
the ground of ethnic origin second with regard to
the question about the frequency of this phenom-
enon in the Republic of Macedonia. Namely,
55% of the respondents answered that discrim-
ination on the ground of ethnic background was
a frequent phenomenon (Petrovska Beska, Na-
jcevska, 2009, p.13).
7
The same fnding results
from another survey entitled Discrimination in
the Republic of Macedonia on the ground of
ethnic origin, according to which 67.7% of the
respondents answered that ethnic discrimination
was a frequent phenomenon in the Republic of
Macedonia (Krzalovski, 2011, p.10).
8
It is worth
mentioning that this percentage is higher with
the ethnic Albanians. Namely, as many as 84.7%
of the Albanians think that ethnic discrimina-
tion is a frequent phenomenon in Macedonia,
whereas this percentage for the ethnic Macedo-
nians is lower compared to that of Albanians,
but it still refects a signifcant majority (60.4%)
(Krzalovski, 2011, p.10).
Broken down by area, the 2009 survey clear-
ly shows that discrimination in the labor rela-
tions area does exist, especially with regard to
employment. Namely, the Barometer for equal
opportunities survey ranks the ethnic origin the
second most important characteristic (after the
political party affliation) that infuences the
employment of an individual person (Petrovska
Beska, Najcevska, 2009, p.37). According to the
2011 survey as well, discrimination is strongly
felt in the segment of employment, both in the
public and the private sector (Krzalovski, 2011,
p.18). As many as 79.3% of the citizens were of
the opinion that there was discrimination on the
ground of ethnic origin in the segment of em-
ployment in the public or private sector.
It is important to note that 47.5% of the Alba-
nian respondents think that the ethnic origin is a
ground of discrimination in employment, where-
as the proportion of ethnic Macedonians who
share this opinion is 18.5% (Petrovska Beska,
Najcevska, 2009, p.37). According to the 2011
survey, 89.3% of the Albanian respondents think
that the ethnic discrimination exists in the seg-
ment of employment in the state sector, whereas
this percentage is 75.5% for the Macedonians
(Krzalovski, 2011, p.18). This confrms that the
perception of discrimination is stronger among
the non-majority ethnic communities in Mace-
donia.
As regards the personal experience of suffering
discrimination, this percentage is lower than the
perception i.e. the feeling of the citizens about
the existence of discrimination. Namely, 19.1%
of the citizens have been victims of discrimina-
tion whereas 23.4% witnessed ethnic discrimi-
nation. Here also things are divided along ethnic
lines. Ethnic Albanians answered that they were
victims of discrimination in a larger number of
cases (39.3%), compared with 9,9% of the ethnic
Macedonians (Krzalovski, 2011).
1.4.2. Reported cases of
ethnic discrimination
The existence of ethnic discrimination in the
Republic of Macedonia is also confrmed with
the cases reported before the Ombudsmans Of-
fce and the Commission for Protection against
Discrimination. The situation with the Ombuds-
mans Offce for the past 4 years has been such
that a total of 110 complaints for alleged dis-
crimination have been submitted as follows: 20
complaints in 2009, 16 complaints in 2010, 42
complaints in 2011 and 32 complaints in 2012. It
should be mentioned that the number of com-
plaints about alleged discrimination in relation
to the total amount of complaints is very low, as
follows: 0.55% for 2009; 0.40% for 2010; 0.99
% for 2011 and 0.74% for 2012.
Among the 20 complaints submitted in 2009,
4 of them or 20% were on the ground of ethnic
origin, whereas in 2010, out of 16 complaints,
9 or 56.3% were on the ground of ethnic ori-
gin. In 2011, out of 42 complaints about alleged
discrimination, 15 or 25.71% were on the ground
of ethnic origin, and for 2012, out of 32 com-
plaints, 9 or 28.1% were on the same ground. As
one can see, the citizens are complaining the
most about discrimination on the ground of
ethnic origin. It is explicitly mentioned in the
annual reports of the Ombudsman for 2011
and 2012 that the majority of complaints about
alleged discrimination on the ground of ethnic
origin fall within the labor area (Ombudsmans
Offce, Annual Report for 2011, p. 35; Ombuds-
mans Offce, Annual Report for 2012, pp. 37-
38).
As far as the Commission for Protection
against Discrimination is concerned, the com-
plaints about alleged discrimination on the
ground of ethnic origin are also in the lead. In
the frst working year of the Commission, which
was 2011, 13 out of the total of 60 complaints
were related to alleged discrimination on the
ground of ethnic origin, which comes second
on the ranking list after the political affliation
ground (with 15 complaints). Out of these 13
cases of alleged discrimination on the ground
of ethnicity, 6 or somewhat below 50% were in
the area of work and labor relations (CPD, An-
nual Report for 2011, p. 9). The total number
of complaints in 2012 rose up to 75, the largest
26 27
(7) Discrimination on the ground of political affliation ranks frst according to the perception, with 78% of the re-
spondents answering that this is a frequent phenomenon in Macedonia.
(8) According to this report, discrimination on the ground of political affliation ranks frst in terms of frequency
(89.9%) as well.
group among which (16) was related to alleged
discrimination on the ground of ethnic origin.
Among those, only 2 are related to alleged eth-
nic discrimination in the labor area. As of Au-
gust 2013, a total of 58 complaints have been
submitted to the CPD, out of which the largest
group of complaints (16) related to discrimina-
tion on the ground of ethnic origin, and among
those 7 belonged to the area of work and labor
relations.
As a conclusion, among the total number of
complaints before the CPD, those about alleged
discrimination on the ground of ethnic origin
are ahead with regard to the other grounds, and
they are related to a large extent to the labor re-
lations area (this fgure is around 50% for 2011
and 2013).
These fgures match the above perception of
discrimination on the ground of ethnic origin in
the area of labor. Namely, the perception of the
citizens about the existence of ethnic discrim-
ination in the labor area is consistent with the
situation concerning the cases brought before the
Ombudsmans Offce and the CPD, where the
complaints on the ground of ethnic origin in the
labor feld are in the lead (CPD, Annual Report
for 2011, p.8).
Likewise, the perception of the citizens that the
most affected by discrimination on the ground of
ethnic origin are the members of the non-major-
ity communities in the Republic of Macedonia
was confrmed as well. This can be concluded
on the basis of the ethnic background of the ap-
plicants in the cases of both the Ombudsmans
Offce and the CPD. As an illustration, out of
the total of 16 complaints submitted before the
CPD for ethnic discrimination in 2012, 15 were
fled by members of the non-majority communi-
ties (CPD, Annual Report for 2012, .17).
1.4.3. Principle of equitable
representation
The principle of equitable representation is
one of the fundamental values of the constitu-
tional order of the Republic of Macedonia, ex-
plicitly mentioned in the Amendment VI to the
Constitution of the Republic of Macedonia. Af-
ter following the situation with the adequate and
equitable representation in line with its legal
competences, the Ombudsmans Offce points to
a certain progress in the implementation of the
principle of adequate and equitable representa-
tion, but the statement that the majority of the
institutions have not achieved the compulsory
level of representation yet remains valid (Om-
budsmans Offce, Annual Report for 2012, .
44).
From a statistical point of view, 2012 marked
a mild increase in the total number of em-
ployed members of the Albanian (from 17.2% to
17.8%) and Turkish (from 1.7% to 2.0%) com-
munities. The numbers for the other non-major-
ity communities remain at the same level as in
2011, whereas a mild decrease in the total num-
ber of employed persons was noticed among the
majority community (from 76.3% to 75.2%)
(Ombudsmans Offce, Annual Report for 2012,
. 43).
The Ombudsman also notes that similarly as
in other reporting years, the principle of ade-
quate and equitable representation is better im-
plemented by the state administration bodies
than by the public enterprises (Ombudsmans
Offce, Annual Report for 2012, . 40). The
Ombudsman submits that it is necessary to take
additional measures for implementation of the
tion for the members of the less numerous com-
munities (Ombudsmans Offce, Annual Report
for 2012, . 44).The low level of representation
of the small communities, especially the Turkish
and the Roma, is also noted in the EC Progress
Report on the country for 2012 (EC, Progress re-
port for 2012, . 17).
Regarding the adequate and equitable repre-
sentation with regard to managerial posts, there
was an insignifcant decrease in the ethnic Mace-
donian campus and a mild increase in the number
of managerial positions for members of the Al-
banian and Turkish communities (Ombudsmans
Offce, Annual Report for 2012, .43). However,
the situation with the public enterprises is very
unsatisfactory with regard to managerial posts
since the principle of adequate and equitable
representation has not been observed for years
in the past there. The negative examples that are
mentioned in the Ombudsmans Annual Report
include the public enterprises, the public health-
care institutions, the fund entities, and the inde-
pendent state authorities (Ombudsmans Offce,
Annual Report for 2012, . 40).
The Secretariat for the Implementation of the
Ohrid Framework Agreement undertakes mea-
sures for implementation and monitoring of the
tion of the members of the communities. The
Secretariat has developed a program for em-
ployment of the members of the communities
based on the analysis it had conducted and based
on the information obtained from the Annual
Plans of the ministries and other state adminis-
tration authorities as well as the data obtained
from the public enterprises about the represen-
tation of the non-majority ethnic communities in
the Republic of Macedonia. When the program
was being developed, one took into account,
inter alia, the recommendations included in the
Strategy on Adequate and Equitable Representa-
tion as well as the recommendations in the Stra-
tegic Plan of the Secretariat, which provides for
measures and activities to improve the situation
with the adequate and equitable representation.
In the context of equitable representation in
the state and public administration, the data of
the Secretariat indicates that in 2011 competi-
tions for employing members of the non-majori-
ty communities in the country were launched, as
a result of which 543 members of the non-major-
ity communities were employed (361 with com-
pleted higher education and 182 with completed
secondary education). A procedure for new 140
hires from the non-majority communities is now
being initiated, and the plan is to hire 100 indi-
viduals with higher education and 40 individuals
with secondary education degrees (Ombuds-
mans Offce, Annual Report for 2011, . 36). The
citizens of Macedonia are generally supportive
of the affrmative measures for securing equal
employment opportunities for the non-majori-
ty communities such as vocational training and
quotas for employment. The percentage of sup-
port in the public sector is 73.2%, whereas in the
private sector it is 67.4%. There is no division
along ethnic lines for this support (Krzalovski,
2011, .18-19). On the other hand, this same sur-
vey indicates that 66.9% of the respondents are
supportive of employments based on objective
criteria without taking into account the ethnic
criteria. This proportion is higher among the
Macedonians (70.9%) but this viewpoint is also
shared by the majority of Albanians (54.6%).
With regard to the cases of discrimination
on the ground of ethnic origin in the labor
area reported before the CPD, it is worth
mentioning the case of discrimination with
regard to the open competition for flling
of a vacancy in one elementary school.
After the complaint has been submitted,
the CPD addressed the school, got the
vacancy announcement, had a telephone
conversation with the school and examined
the answer provided by the school. After
examining all the facts, the CPD established
existence of discrimination on ethnic
grounds in the selection of the candidate,
following which the competition for flling
of the vacancy was annulled, the competition
was re-launched and the applicant was
eventually hired (CPD, Annual Report
for 2011, . 23).
28 29
Age
2
Discrimination on the ground of age is a new
form of discrimination, which is very slow-
ly accepted as such in the mind of the people.
Generally speaking, the prejudices that the age
affects the working ability of the individuals are
still strong, and due to it this is considered as
a reasonable criterion for making a distinction
in the feld of employment and labor relations.
Regretfully enough, the Constitutional Court of
the Republic of Macedonia has reasoned along
these lines (Constitutional Court of the Repub-
lic of Macedonia, Decision No. 118/2003-0-0,
16 July 2003). Due to such prejudices, discrimi-
nation on the ground of age is represented in its
most basic forms but it does not get recognized,
having as a result an insignifcant number of re-
ported cases of discrimination on the ground of
age in the labor relations feld (Ombudsmans
Offce, Annual Report for 2010, 2011and 2012).
9
2.1.
INTERNATIONAL
LEGAL STANDARDS
From the point of view of international law,
the obligation to protect against discrimination
on the ground of age in the labor relations feld
arises from several conventions. Important for
the Republic of Macedonia is the obligations
arising from the conventions adopted by the
United Nations and by the Council of Europe as
well as the legal rules adopted by the European
Union. The text below speaks about the Interna-
tional Covenant on Economic, Social and Cul-
tural Rights (ICESCR), the ILO Convention on
Discrimination in Employment and Occupation,
(Convention 111 of the ILO), the European Con-
vention on Human Rights and Protocol 12 to the
Convention, the European Social Charter and the
EU Directive 2000/78/ on Equal Treatment in
Employment and Occupation.
2.1.1. International Cove-
nant on Economic, Social
and Cultural Rights
The ICESCR contains an anti-discrimination
clause in its article 2. This clause has an acces-
sory nature and relates to protection against age
discrimination only with regard to the rights stip-
ulated in the ICESCR. An important fact for our
survey is that the rights arising from employment
are stipulated in the Covenant, thus the anti-dis-
crimination clause relates to these rights as well.
More specifcally, the Covenant stipulates the
right to work (article 6), the right to the enjoy-
ment of just and favourable conditions of work
(article 7), and the right to form trade unions and
join the trade union of ones choice (article 8).
Characteristic of the ICESCR is that age is not
mentioned among the discriminatory grounds
in the anti discrimination clause; however, the
Committee on Economic, Social and Cultural
Rights (CESCR) interprets this clause as if it
included the age within the category other sta-
tus (CESCR, General Comment No. 20, para-
graph 29). This can be the only valid conclusion
if account is taken of the open list of discrimi-
natory grounds in the anti-discrimination clause.
The Committee agrees that the anti discrim-
ination clause includes both direct and indirect
discrimination. They are defned in a similar
manner as in the instruments containing explicit
defnitions thereof (CESCR, General Comment
No. 20, paragraph 20). The Committee also
agrees that not every differentiation means dis-
crimination on the ground of age. Therefore, the
Committee created the proportionality test and
requires that there is a clear and reasonable
relationship of proportionality between the aim
sought to be realised and the measures or omis-
sions and their effects (CESCR,General Com-
ment No. 20, paragraph 13).
The basic duty for the States that have rat-
ifed the ICESCR in this regard is to prevent
discrimination on grounds of age in the enjoy-
ment of the rights, including the rights arising
from employment. This stems from the General
Comment No. 6 which relates to elderly per-
sons over 60 years and to their economic, social
and cultural rights (CESCR, General Comment
No. 6).
10
This means that there is an explicit ob-
ligation, which by the way is rare in the interna-
tional contract law, to prevent discrimination on
grounds of age in the labor relations area, espe-
cially against older persons. In addition to their
obligation to prevent age discrimination, the
States have the duty to enable equal conditions
for work for the older persons as well as equal
opportunities for establishing and joining orga-
nizations of workers (CESCR, General Com-
ment No. 6, paragraphs 23 and 25). Equal con-
ditions for work means that all the rights from
employment must be accessible and enjoyable
equally for all regardless of the age of the work-
er. This is a very essential obligation, signifcant
for this survey.
The Committee also has a viewpoint with
regard to compulsory retirement. Bearing in
mind that the latter is broadly practiced, the
standpoint of the Committee highlighted in
the General Comment No. 6 is that the age for
compulsory retirement needs to be established
depending on the occupations performed and
the working ability of elderly persons, with due
regard to demographic, economic and social
factors (CESCR, General Comment No. 6, para-
graph 28). This means that several factors need
to be taken into consideration including the
working ability of the workers. A contrario, this
means that it is not allowed to disregard these
circumstances and to set the retiring age without
giving any argument as to why the worker has to
leave the labor market only because of the fact
that he or she has reached a certain pre-deter-
mined age.
2.1.2. ILO Conventions on
Prohibition of Discrimina-
tion in Employment and
Occupation
The International Labor Organization (ILO)
has adopted a specifc convention related to pro-
tection and discrimination in the labor feld. This
is the Convention 111 which prohibits discrimi-
nation in the labor area, and provides for access
to vocational training and advanced training nec-
essary for acquiring specifc professional quali-
fcations, access to employment and occupation
as well as criteria for employment and work
and working conditions (Convention 111 of the
ILO, article 1 paragraph 3).
What is missing in the Convention is the fact
that age is not stipulated as a separate discrimi-
natory ground. Only race, color [of skin], sex, re-
ligion, political opinion, and national and social
origin are listed in article 2 of the Convention
where discrimination is defned. The defnition
does not speak about an open list of grounds;
instead, the list is closed. From a legal point of
view, this faw of the Convention is signifcant
because of the fact that it may not be applied to
discrimination on grounds of age.
In order to mitigate this drawback, and while
unable to adopt a special protocol, the ILO ad-
opted on its general conference in 1980 the
Older Workers Recommendation. With this in-
strument the ILO recommends to the states to
promote equality of opportunity and treatment
for workers, whatever their age, and calls upon
the States to take measures for the prevention
of discrimination in employment and occupa-
tion with regard to older workers (ILO, Older
Workers Recommendation, 1980, paragraph 3).
30 31
(9) It turns out from the reports that the Ombudsmans Offce did not receive a complaint about alleged discrimination
on the ground of age.
(10) We have to highlight that with this General Comment, the Committee highlights that discrimination on the
ground of age affects both the young and the elderly people. In addition, the anti discrimination clause from the Inter-
national Covenant covers both the elderly and the young people. Still, the category of over 60 years old is considered as
more vulnerable and therefore a separate General Comment was adopted.
Older workers should enjoy equality of opportu-
nity and treatment with other workers as regards,
in particular, access to vocational guidance and
service providers offering vocational training;
access to employment taking account of their
personal skills, experience and qualifcations;
promotion; remuneration for work of equal val-
ue; social security measures and welfare bene-
fts; access to housing, social services and health
institutions, in particular when this access is
related to occupational activity or employment
(paragraph 5).
This Recommendation requires from the
States to undertake measures enabling older
workers to continue in employment under satis-
factory conditions, with the participation of the
representative organizations of employers and
workers. The Recommendation insists on stud-
ies to be undertaken in order to identify the types
of activity likely to hasten the ageing process
or in which older workers encounter diffculties
in adapting to the demands of their work (para-
graph12). Moreover, the Recommendation re-
quires from the ILO Member States that in case
of reduction of the workforce, to make special
efforts to take account of the specifc needs of
older workers by facilitating advanced training
or re-training for other industries, by providing
assistance in securing new employment or by
providing adequate income protection or ade-
quate fnancial compensation in case of unem-
ployment (paragraph 18). It is also recommend-
ed that special measures be taken with a view to
ensuring a gradual transition from working life
to freedom of activity, and making the age quali-
fying for an old-age pension fexible. On the oth-
er hand, legislations that make the termination
of employment mandatory at a specifed age are
advised to re-examine this arrangement in the
light of the paragraph 3 of this Recommendation
which relates to discrimination on grounds of
age (paragraphs 21-22).
This Recommendation is not legally binding
for the States. Nevertheless, it is important that
the General Conference of the ILO recognizes
the importance of discrimination on grounds of
age and its negative effects on the older workers.
This is why this body has called upon the States
to take various measures in order to prevent and
eliminate discrimination in the labor feld as
well as to improve in general the position of old-
er workers and to help them stay at work for as
long as possible. This Recommendation relates
to protection against discrimination on grounds
of age in the labor feld and is part of the interna-
tional soft law.
2.1.3. ECHR, Protocol 12
to ECHR and the European
Social Charter
These three international agreements were
adopted by the Council of Europe and all three
of them have been ratifed by the Republic of
Macedonia. However, not all three have the same
importance for the discrimination on grounds of
age in the labor feld. The European Convention
on Human Rights includes an anti-discrimina-
tion clause in its article 14. Age is not explicitly
mentioned in this clause, but bearing in mind the
open list of discriminatory grounds the Europe-
an Court of Human Rights interprets this provi-
sion as if it included age among the grounds as
well (ECHR, Stec and others v. the United King-
dom). Nevertheless, as mentioned above, given
the accessory nature of article 14, i.e. the fact
that it provides protection only with regard to
the rights stipulated in the ECHR and the latter
does not guarantee the right to work, this article
does not have a great signifcance for this study.
Protocol 12 to the ECHR stipulates a general
prohibition of discrimination. Age is not explic-
itly mentioned as a discriminatory ground but
the explanatory report claims that age is consid-
ered to be covered by article 1 of Protocol 12 by
virtue of the fact that the list of grounds is open.
Important about Protocol 12 is that it includes a
general prohibition of discrimination in all the
areas of life in a society. In other words, Protocol
12 goes beyond the ECHR. For our survey it is
important that Protocol 12 will also be applied
to the rights arising from employment. The Re-
public of Macedonia has ratifed Protocol 12 to
the ECHR.
The revised European Social Charter stipu-
lates the rights arising from employment includ-
ing article E in Section 5 which prescribes an
obligation for the States to ensure the enjoyment
of the rights enshrined in the Charter without any
discrimination. Notwithstanding that age is not
mentioned in this anti-discrimination clause as
a separate ground, there is no dilemma that it is
included in the category other status. This in-
strument is signifcant for the Republic of Mace-
donia for the fact that the country ratifed it in
2012, which was also the year of its entry into
force.
2.1.4. Council Direc-
tive 2000/78/ establish-
ing a general framework for
equal treatment in employ-
ment and occupation
Based on the Amsterdam Treaty and article 13
thereof, the institutions of the European Union
received the competence to undertake measures
for fghting discrimination on the ground of age
as well. Separate directives were adopted for the
grounds sex and racial and ethnic origin; for the
grounds religion and belief, disability, sexual
orientation and age a single instrument was ad-
opted, which is the Council Directive 2000/78/
establishing a general framework for equal
treatment in employment and occupation.
The different treatment of these grounds by
the EU law can be noticed in particular in the dif-
ferent substantive scope of the directives. While
the frst two directives which protect the sex and
racial/ethnic origin cover a broader substantive
scope, the directive related to the other four
grounds covers just labor. In other words, it is
only this directive that offers protection against
discrimination on the ground of age within the
EU in the labor realm. The institutions of the EU
do not seem to fnd the strength needed to adopt
a directive that would protect against discrimina-
tion on the ground of age (and on the other three
grounds) outside of the labor realm.
11
The Directive, as it was mentioned above, ex-
plicitly mentions age as a ground. However, the
substantive scope of the Directive is too narrow.
It relates only to the labor relations in the pub-
lic and private sectors and covers all the aspects
- from the moment of publishing the vacancy
announcement, the process of applying for the
job, the requirements that the applicants need
to meet, the interviews, the act of entering em-
ployment, the rights arising from employment,
the pay, vacation, promotion, other benefts,
vocational guidance, vocational training and
advanced training, practical work, membership
in organizations of workers, making use of the
benefts of such membership, and termination of
employment (article 3.1.). This Directive does
not apply to payments of any kind made by state
schemes or similar, including state social securi-
ty or social protection schemes, and the Member
States may provide that this Directive, in so far
as it relates to discrimination on the grounds of
disability and age, shall not apply to the armed
forces (articles 3.3 and 3.4).
This Directive contains defnitions of direct
and indirect discrimination (article 2.2), harass-
ment (article 2.3), instruction to discriminate
(article 2.4), victimization (article 11), positive
action (article 7), and shifting of the burden of
proof (article 10).
What narrows down the scope of the direc-
tive even more are the provisions enabling
non-application of the Directive. In this respect,
the provisions excluding the application of the
Directive in the areas of social protection and
social security as well as armed forces should
be mentioned. Moreover, article 2.5 provides
that this Directive shall be without prejudice
to measures laid down by national law which,
in a democratic society, are necessary for pub-
lic security, for the maintenance of public order
and the prevention of criminal offences, for the
protection of health and for the protection of the
32 33
(11) Such initiative exists through the Proposal for a Council Directive on implementing the principle of equal
treatment between persons irrespective of religion or belief, disability, age or sexual orientation, SEC(2008) 2180),
2 July 2008. Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:EN:NOT.
rights and freedoms of others. These measures,
should they contained some kinds of distinctions
with regard to age, would not be considered as
discriminatory provided that they have passed
the necessity and proportionality tests.
Protection against discrimination on grounds
of age through this Directive is very negatively
affected by the provision of article 6.1, which
stipulates that Member States may provide that
differences of treatment on grounds of age will
not constitute discrimination. An interesting
thing here is that this provision applies only to
the differences of treatment on grounds of age,
whereby age is placed in an unequal position
with the other grounds of discrimination arising
from article 13 of the Amsterdam Treaty. How-
ever, these differences of treatment on grounds
of age still have to pass the test of necessity
i.e. proportionality (legitimate aim and necessity
and appropriateness).
2.2.
NATIONAL LEGAL
FRAMEWORK
The Republic of Macedonia has an adequate
legal framework for protection against discrim-
ination on grounds of age. The framework was
made complete with the enactment of the Law
on Prevention and Protection against Discrimi-
nation. The national legal framework, despite all
of its inconsistencies and terminological discrep-
ancies, still constitutes a good basis for effcient
protection against discrimination on the ground
of age in the labor relations feld.

2.2.1 Constitutional provi-
sions
The principle of equality in the Republic of
Macedonia is refected in article 9 of the Mace-
donian Constitution. Although this constitution-
al provision safeguarding equality does not spe-
cifcally refer to age as discriminatory ground,
one should not and must not conclude that the
Republic of Macedonia lacks the constitutional
basis for producing legislation that will prevent
and protect from discrimination on the ground
of age. The age as discriminatory ground is spe-
cifcally referred to in article 3 of LPPD, in the
Labor Relations Law (articles 6-9) and the Law
on Volunteering (article 9). Moreover, Republic
of Macedonia is party to international covenants
which ban discrimination on grounds of age,
such as ICESCR, ECHR and Protocol 12 to the
ECHR. This reinforces the position that Mace-
donias legal system contains safeguards against
discrimination on grounds of age, yet we are of
the opinion that the provision from article 9 of
the Constitution of Macedonia should undergo a
change that will help avoid unnecessary dilem-
mas regarding this issue.
2.2.2 Labor Relations Law
Labor Relations Law is the substantive law
containing the anti-discriminatory provisions
and precisely concerns labor relations. Labor
Relations Law in great part transposes Directive
2000/78/.
12
As for the substantive scope of the Law, it
covers labor relations in their entirety, including
vacancy announcements, manner of application,
rights pertaining from labor relations, termina-
tion of the job contract, affliation to workers
organizations and rights from affliation, all the
types and degrees of qualifcations, retraining
and professional training (article 7).
Unlike Directive 2000/78/, the Labor Re-
lations Law does not contain general provision
justifying distinctions on grounds of age. This
means that in the Republic of Macedonia age
distinctions cannot be justifed on any basis save
those specifcally enumerated in the said Law.
And those are very few, that is, the essential and
decisive employment condition (article 8, para-
graph 1, point 1) and measures for special pro-
tection of elderly workers (article 8, paragraph
1, point 2). Any other distinction on ground of
age shall be considered as discriminatory in la-
bor relations.
LPPD stipulates other forms for justifying dis-
tinctions on ground of age in labor relations. Thus
forth, in addition to the essential employment
condition from article 14, paragraph 1, point 2,
provisions exist for justifying distinctions on
ground of age in cases of: defning the minimal
age requirement, professional experience in the
selection process or in granting certain privileg-
es related to employment, if the latter is objec-
tively justifed for attaining a legitimate goal,
whereby the content of this distinction doesnt
exceed the level needed for achieving the goal
(article 14, paragraph 1, point 8); defning max-
imum age in the employment process which is
related to the training needed or due to the needs
for rational time limitations linked to retirement
as prescribed by law, when this is objectively
justifed for attaining a legitimate goal, where
the content of this distinction doesnt exceed the
necessary level of attaining this goal (article 14,
paragraph 1, point 9). This by itself constitutes
legal inconsistency and needs to be settled.
2.2.3 Law on Prevention
and Protection Against Dis-
crimination
LPPD specifcally lists the age as discrimina-
tory ground in article 3. In addition to the age
as discriminatory ground, important to be said
about this law, given that LPPD offers protection
from discrimination on ground of age as well,
is the wide substantive scope thereof (article 4).
Keeping in mind the broad substantive im-
plementation of LPPD, one can freely say that
discrimination on ground of age is prohibited in
all areas just like the more developed national
legislations prohibit it as well. More specifcally,
it covers areas referred to in Directive 2000/78/
on equal treatment in employment and oc-
cupation.
he problematic thing about LPPD as a gen-
eral anti-discriminatory act is the fact that ex-
ceptions from discrimination are not made very
precise. More specifcally, since this is a general
law (many grounds of discrimination and wide
substantial scope), all the possible exceptions
from all types of discrimination cannot be listed
separately. The recommendation is to incorpo-
rate general possibility for justifcation of dis-
tinctions made in relation to the grounds enu-
merated in article 3, including distinctions made
in relation individuals age.
Moreover, the challenge is to harmonize the
approach of LPPD with that of the other substan-
tive laws containing anti-discriminatory provi-
sions, as certain confusion is created. More spe-
cifcally, some laws pertaining to areas covered
by LPPD, although adopted later than LPPD, do
not enumerate age as possible discriminatory
ground. Such examples are the Law on Protec-
tion of Rights of Patients, Law on Social Pro-
tection and Law on Public Health. Moreover,
defnitions of discrimination must be harmo-
nized with international standards, including
exceptions to discrimination although not direct-
ly related to age discrimination but the effects
thereon can be felt.
2.3.
NATIONAL POLICIES
In accordance with positive legislation, the in-
stitutions in charge adopted a number of nation-
al strategies for preventing age discrimination
in labor relations, and for special protection of
certain categories of persons on ground of age.
Several of them will be tackled, while the focus
should be placed on their implementation.
2.3.1 National Strategy on
Elderly People for 2010-
2020
The National Strategy on Elderly People was
adopted by the Macedonian Government in
2010, and refers to the 2010-2020 period. The
signifcant thing about our research from the
perspective of labor relations is that the Strate-
34 35
(12) See comment bove regarding this part, the part of Labor Relations Law pertaining to discrimination on ground
of ethnicity. The same comment applies for discrimination on ground of age.
gy underlines the need to include elderly people
in the labor market. This is perceived as a mea-
sure for improving quality of life of the elderly
population (National Strategy on Elderly People,
2010, p. 25).
Measures taken for attaining this goal include
different documents such as the Program of
the Government of the Republic of Macedonia
2008-2012, the National Employment Strat-
egy 2010, the National Employment Action
Plan 2009-2010 (NEAP), perational Plan of
the Government for active programs and em-
ployment measures for 2009, the Strategy for
Demographic Development of the Republic of
Macedonia 2008-2015 as well as the Multi-an-
nual Operation Program for Human Resource
Development 2007-2013 (National Strategy
on Elderly People, 2010, p. 25). For illustration
sake, in 2009 the measure Subsidizing employ-
ment of the elderly covered 576 persons of the
planned 629 persons. (National Strategy on El-
derly People, 2010, p. 26).
2.3.2 National Strategy for
Equality and Non-Discrim-
ination on the ground of
Ethnicity, Age, Mental and
Physical Disability and Sex
2012-2015
Unlike other strategies aimed at protecting
special age groups in labor relations, the goal
of this Strategy is precisely protection from dis-
crimination. The strategy is adopted by the Gov-
ernment of the Republic of Macedonia for the
2012-2015 period.
In terms of age, general and specifc strate-
gic goals are planned, starting from training,
strengthening of the institutional capacity, im-
plementing research, leading up to creation of
employment conditions for all age groups at the
open labor market (National Strategy for Equal-
ity and Non-discrimination, p. 24).
2.3.3 National Strategy for
Reducing Poverty and So-
cial Exclusion in the Repub-
lic of Macedonia for 2010-
2020
This strategy was adopted by the Government
of Macedonia and the Ministry of Labor and
Social Policy for the 2010-2020 period. One of
the main goals of the strategy also includes in-
crease of employment, as a concept which en-
ables creation of better conditions for effective
and effcient involvement of the citizens (Na-
tional Strategy for Poverty Reduction, . 3).
The age group in special focus is young peo-
ple, including measures for their employability
at the labor market. Proposed measures include
incentives for opening new jobs; measures
aimed at gaining new work experiences which
will make young people more competitive at the
labor market; aligning the education system with
labor market needs; providing the necessary in-
formation from institutions regarding the needed
skills, in order to defne better the education and
training policies. The Employment Agency is
asked to stimulate job search by the unemployed,
to improve the data base of unemployed which
will only contain those truly seeking employ-
ment, to apply personalized approach towards
certain groups of unemployed and to improve
self-help services for individuals with greater
chance of fnding employment on their own
(National Strategy for Poverty Reduction, p. 19-
20).
2.3.4 National Employment
Strategy 2015
The National Employment Strategy was ad-
opted by the Ministry of Labor and Social Policy
for the 2011-2015 period. The strategy focuses
also on youth as a specifcally affected age cat-
egory when it comes to employment (National
Employment Strategy of the Republic of Mace-
donia 2011-2015, pp. 7 and 22). Thus forth spe-
cifc target is set for adopting measures for fght-
ing youth unemployment (National Employment
Strategy of RM 2011-2015, p.32). Improving the
position of youth on the labor market is expected
to be reached by engaging complex correlated
measures, especially through aligning the edu-
cation system with demands of the labor market,
volunteering and apprenticeship, increased mo-
bility, active employment programs, training and
counseling on active job search, etc.
Separate goal in the strategy is increasing
employment rate of the elderly (aged 55 to 64),
from 34.2% in 2010 to 41% in 2015 (National
Employment Strategy of RM 2011-2015, p. 30).
Nonetheless the National Strategy does not an-
ticipate measures for increasing the employment
percentage of the said category of people. In
another document, the Strategy for the Elder-
ly People, the forecast is that with all relevant
programs, this target group will be in the focus
and that funds will be obtained and earmarked
for employing this category of unemployed per-
sons and they will be one of the priorities in all
strategic documents pertaining to employment
(Strategy on Elderly People, p. 26).
2.4.
SITUATION ANALYSIS
This part of the research shall demonstrate
whether discrimination on ground of age occurs
in the Republic of Macedonia, in which forms it
occurs and how effective are the legislation and
adopted national strategies in protection from
age discrimination.
2.4.1. Forms of discrim-
inatory practices on the
grounds of age
In labor relations, age is used above all as
employment criterion. Very often vacancy an-
nouncements in the Republic of Macedonia
specify the age limit of incumbents as a criteri-
on. Such practices are most often discriminatory
because age appears as essential employment
condition in only a limited number of job posi-
tions. In order to be essential employment condi-
tion, they must meet the condition of indispens-
ability for the said position (article 8, paragraph
1 of Labor Relations Law, article 14, paragraph
1, point 2 of the LPPD). This will hardly prove
successful at all times because age doesnt speak
of persons capabilities. For instance, one can
hardly justify the requirement that the candi-
date for position of salesperson at showroom for
bathroom furniture and accessories must not be
older than 30.
13
The age as employment criterion is particu-
larly required by private employers, who do not
have the knowledge or sensibility that such dis-
criminatory criteria must not be set. Annual re-
ports however say that no complaints have been
fled for accounts of discriminatory criteria on
ground of age in vacancy announcements before
the Ombudsman or the Commission for Protec-
tion Against Discrimination.
With regards to rights pertaining from labor
relations, discrimination on ground of age can
occur in different forms. It can appear in rela-
tion to the use of vacations, promotion practices,
salary, etc. It is important to confrm that such
unfavorable treatment is a result of the age of the
alleged victim.
There are two cases before the Commission
for Protection Against Discrimination for alle-
gations of discrimination on ground of age con-
cerning rights pertaining from labor relations.
Age is also used as criterion for termination
of employment. Such a classical example in the
Republic of Macedonia applies to professional
soldiers, who, under the Law on Army Service
in the Republic of Macedonia, cannot sign ser-
vice contract after turning 45 years of age (Law
on Amendments to the Law on Army Service
of the Republic of Macedonia, article 4). Under
provisions of the said Law, professional soldiers
sign fxed-term work contracts with duration of
3 years, which must not be extended beyond the
age of 45 of the professional soldier.
The problematic thing in this case is the legal
presumption that professional soldiers, after the
age of 45 are by defnition unft to perform the
professional tasks required by their profession.
This represents unfavorable treatment on ground
of age, which does not automatically constitute
discrimination. This shall be conditioned by the
36 37
principle of proportionality and indispensabili-
ty as per article 14, paragraph 1, point 9 of the
LPPD. his means that in case of allegation of
discrimination, one should justify the existence
of such a condition.
Similar provision is valid for aircraft pilots, but
the approach and selected solutions are far more
fexible and benefcial for older pilots. Thus, a
pilot who turned 60 shall not fy commercial
airline aircraft, unless he/she fies with other pi-
lots and he/she is the only pilot older than 60.
Highest age for pilots is positioned at 65, after
which pilots cannot fy commercial fights under
any conditions. (Rulebook on training, testing,
licensing and authorizations of airplane pilots, p.
16). The same applies for this case. The maxi-
mum age limit must not be accepted as objective
by itself, but should be justifed as indispensable
according to exceptions prescribed in the LPPD,
article 14.
Another case of lawful use of workers age
in labor relations is termination of employment
because of workers age. To be precise, there is
a possibility in the Republic of Macedonia for
workers employment to be terminated only be-
cause he/she reached a certain age.
14
The man-
datory termination of employment is provided
for both in Labor Relations Law (article 104),
and in other laws which regulate the public sec-
tor, such as the Law on Courts (article 73), Law
on Public Prosecution (article 66), Law on Civil
Servants (article 108), Public Notary Law (arti-
cle 14), Law on Higher Education (article 147).
These laws provide for termination of employ-
ment by the mere fact that the worker reached a
certain age, without taking into account the will
and work capabilities of the employee.
Such a form of termination of employment
by defnition represents less favorable treatment
on ground of workers age. Workers affected by
these rules can easily make likely the existence
of less favorable treatment, by which the burden
of proof shifts to the side of state authorities,
which need to prove that termination of employ-
ment on ground of age is justifed in that em-
ployees case. They need to prove that the above
represents a necessary means to attaining certain
legitimate goal, such as, for instance, facilitated
access to jobs for the younger professionals.
In this stage of development of the concept of
age-based discrimination one should analyze the
arguments for the existence of such form of ter-
mination of employment. In case such arguments
are ample and research proves that precisely ter-
mination of employment by meeting certain age
affects the attainment of these legitimate goals,
they can be supported. However, given the pro-
cess of population ageing in global terms, one
should analyze the possibility for loosening the
concept of mandatory termination of employ-
ment on grounds of workers age in Macedonia
as well.
At the EU level, the European Court of Justice
acknowledges that mandatory retirement must
not be a priori accepted as justifed. For manda-
tory retirement to be effectuated the condition
of indispensability and proportionality must be
Both cases date back to 2011 and refer
to presenting amended work contract to
workers before they meet the necessary
age for old age retirement, and the location
of their transfer as per the new contracts
becomes 150 that is 170 km away from the
place of residence of the applicants. In the
former case, the Commission for Protection
Against Discrimination stopped the
initiated procedure, because the client fled
request and was granted old age retirement,
by which all legal grounds for continuing
the proceedings cease to exist. In the latter
case the Commission found evidence
of harassment (and not discrimination)
originating from the contract effectuating
transfer to a new job position, one year and
seven months before the applicant becomes
eligible for old age retirement, to a position
located 170 km away from the place of
residence. As a result of the complaint, a
new contract was offered to the applicant
by which the person was reinstated back to
the original work position, in the branch
offce in the applicants place of residence.
(Annual Report of the Commission for
2011, case 6 (p. 26) and case 11 (p. 28).
met as per article 6 of the Directive 2000/78/
(ECJ, case Palacios de la Villa v. Cortefel Ser-
vicios SA). This approach allows for mandatory
retirement to be placed under judicial control
and not to affect negatively workers who are
able and willing to work.
Unfortunately our Constitutional Court
overturns such a position. In a case where the
Constitutional Court deliberated on mandatory
termination of employment on basis of age of
members of the Judicial Council of the Republic
of Macedonia, the Constitutional Control did not
enter the analysis whether the principle indis-
pensability for existence of such a rule has been
observed. Quite the contrary, the Constitutional
Control found that persons age is legitimate
criterion for regulating human work activity
and that peoples age is a natural and objective
fact in relation to the termination of the work-
ing age (Constitutional Court of the Republic
of Macedonia, Judgment U. no. 118/2003-0-0,
16.07.2003).
It is worth mentioning in the labor relations
feld the trend of reduction of the percentage of
employees in the total fgure with the increase
of age, especially after the age of 55 (State Sta-
tistical Offce of the Republic of Macedonia,
Employees and net wages situation in October
2009, 2010, pp. 16-17). This indicates possible
discrimination on ground of age in the selection
of staff but also in employers choice whom to
fre in case of downsizing. In this area the Gov-
ernment is contemplating measures for facilitat-
ed access of workers aged over 55 to the labor
market, either through employment programs or
subsidizing, or through training and retraining in
order to make them more competitive at the la-
bor market (National Strategy for Elderly People
2010-2020, pp. 25-26).
2.4.2. Perception of dis-
of age
The perception of discrimination on the
grounds of age is generally low. There are still
entrenched stereotypes regarding the effect of
age on the working capability of individuals.
This is confrmed by the fact that there are still
some elementary manifestations of discrimina-
tion on the grounds of age, for example, in the
vacancy announcements or in the legislation it-
self, as stated above.
The same is also backed up through the small
number of reported cases of alleged discrimina-
tion on the grounds of age (see below).
According to the Barometer for Equal Op-
portunities, age is perceived third as a form of
discrimination, following political and ethnical
background. According to 48.5% of the respon-
dents, age-based discrimination is a common
phenomenon in the Republic of Macedonia,
while 13% of the respondents think there is none
(Barometer for Equal Opportunities, 2009, pp.
13-14). This level of perception of discrimina-
tion on the grounds of age does not ft the low
number of reported cases before the relevant in-
stitutions.
2.4.3. Reported cases
of discrimination on the
grounds of age
In regard to reported cases of discrimination
on the grounds of age by the individual with-
in the labour relations, it should be noted that
the number of such cases is insignifcant. This
makes deriving conclusions a diffcult task. It is
manly owing to the fact that citizens are unfamil-
iar with the concept of discrimination, especially
concerning age-based discrimination, which re-
38 39
(7) See vacancy announcement at www.vrabotuvanje.mk dated September 2nd 2013, which reads: The company
INTER ENGINEERING seeks for the showroom MODA DI BAGNO: a salesperson with high education qualif-
cations (advantage is given to technical school), computer literate, with driving licence, aged up to 30, with or without
work experience. Interested candidates should send their CV to: Gradski Zid, block 11/3, by fax to 02-3213-454 or by
e-mail to keti@iriteringenering.com.mk INTER ENGINEERING SKOPJE.
(8) Under the Law on Changes and Amendments to the Law on Pension and Disability Insurance, (Offcial Gazette
of RM no. 24/2000), conditions for the old age retirement is 64 years of age for men and 62 years of age for women,
together with at least 15 years of payment of pension contributions.
3.1. INTERNATIONAL
LEGAL STANDARDS
3.1.1. UN Convention on
the Elimination of All Forms
of Discrimination against
Women
By adopting the Convention on the Elimi-
nation of All Forms of Discrimination against
Women on 18 December 1979, UN made a sig-
nifcant step forward in protecting and develop-
ing human rights in general. The Convention,
which is the fruit of the thirty years work of the
UN Commission on the Status of Women estab-
lished in 1946 and promoting the status of wom-
en, is considered to be the most substantial inter-
national legal instrument universal to this area.
The Convention, which consists of 30 articles,
encompasses internationally recognised princi-
ples and measures to achieve gender equality,
aimed at consistent realisation of womens rights
and increasing her role on all levels and in all
parts of the world. Besides civil and political, in-
cluded also are economical, social and cultural
rights of women. The Convention was ratifed by
the Republic of Macedonia on 18 January 1994.
Pursuant to articles 2 and 3, signatory coun-
tries are obliged to pursue a policy of eliminat-
ing discrimination by means of proper measures
and actions, mainly pertaining to the following:
embodiment of the principle of equality and pro-
vision of the right to legal protection in the na-
tional legislation, amendments to the legislation
related to gender issues, elimination of any type
of discriminatory customs and practices, under-
taking legal and other necessary measures in all
felds of society, economic feld included, for the
advancement of the status of women. Signif-
cant to the advancement of the status of wom-
en is article 4, underlining that the adoption of
temporary special measures aimed at accelerat-
ing de facto equality between men and women
shall not be considered discrimination, and shall
be discontinued when the objectives have been
achieved.
Unlike other international legal documents,
the Convention not only does it create conditions
to modify legal and social practice, but it also
foresees measures aimed at changing social and
cultural behavioural patterns of men and wom-
en. All this is towards eliminating prejudices,
and customs, practices or any behaviour which is
based on the idea of inferiority, or rather, superi-
ority of sexes, or which is based on stereotypes
about the role of men and women. Meaningful
in that sense is also article 7, which provides for
measures to eliminate discrimination of women
in the political and public life. Articles 10-12
foresee positive measures to eliminate gender
discrimination in the felds of education, em-
ployment and health care. Moreover, article 15
call for eliminating discrimination of women
before the law and according a legal capacity to
them. Article 16 provides detailed elaboration of
the equality between men and women in matters
relating to marriage and family relations.
Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination
against Women
The Optional Protocol to the Convention was
adopted on 6 October 1999 by the UN General
Assembly, and put into force on 22 December
2000. The Republic of Macedonia ratifed the
Optional Protocol in 2003. Its objective, inter
alia, was to improve and complement the system
of mechanisms for legal protection of the rights
of women integral to the UN system, and also to
stimulate the taking of appropriate measures by
countries to combat gender discrimination. The
Optional Protocol, thus, introduced the right to
an individual complaint and investigation as ad-
ditional means of monitoring Conventions im-
plementation. The Optional Protocol also fore-
sees the possibility for the Committee to ask a
state party to undertake concrete measures, such
as, amendments to the legislation or application
of positive measures aimed at the consistent im-
plementation of the Convention.
3.1.2. Directive 2006/54 EC
of the European Parliament
and the Council of 5 July
2006 on the implementation
of the principle of equal op-
portunities and equal treat-
ment of men and women in
matters of employment and
occupation
The aim of this Directive is to simplify, mod-
ernise and promote legislation of the Union in
the area of equal treatment of men and women in
matters of employment and occupation by bring-
ing together in a single text the main provisions
existing in this feld, as well as certain develop-
ments arising out of the case-law of the Court
of Justice of the European Union. Relevant to
the EU case-law is the case Bilka, whereas the
CJEU considered the different treatment based
on employers views, by which they justifed the
exclusion of part-time workers from the pension
scheme pointing to the fact that the measure had
been taken to stimulate full-time work in order
to obtain the necessary staff. The CJEU has not
made an unequivocal decision on whether it sees
the measure proportional to the different practice
Sex
3
sults from the lack of a solid strategy for promot-
ing the knowledge related to this concept (Ba-
rometer for Equal Opportunities, 2009, p. 65).
Ignorance of the concept affects the inability to
detect the age-based discrimination in society. In
other words, citizens are reluctant to initiate pro-
cedures for the protection against discrimination
on the basis of age, since they are unaware of be-
ing discriminated. In cases when classifcations
are done on the grounds of age, especially, they
are accepted as normal, objective and justifed.
Because of this, citizens have neither courage,
nor knowledge to challenge such distinctions as
discriminatory.
Due to this, precisely, in the period 2009-
2012, only 110 cases of alleged discrimination
were reported to the Ombudsman, whereas none
of them pertains to the individuals age as a dis-
criminatory ground (Annual Reports of the Om-
budsman for 2009, 2010, 2011 and 2012).
The commenced work of the Commission for
Protection against Discrimination is expected to
be a turning point in this direction. Whatever the
case, the frst two years work of the CPD show
no spectacular number of cases of discrimina-
tion. In 2011, a total of 60 cases of alleged dis-
crimination were reported, three of which were
age-based. In 2012, the number of reported cases
was 75, three of which, once again, were age-
based. In terms of areas, out of the three cases
in 2011, two relate to labour relations (explained
above), while from the three in 2012, there is but
one reported case of alleged discrimination in
the labour relations on the grounds of age (CPD,
2011 and 2012 Annual Report).
Courts have still not identifed a known case of
age-based discrimination in the labour relations,
while as regards a case before the Constitution-
al Court concerning the mandatory termination
of the working relations mentioned above, the
Court decided in way which is rather inappropri-
ate to the existing standards, both national and
international. The same rigidness was shown by
the Constitutional Court in other cases as well,
but not in regard to the labour relations, but in-
stead, it concerned age as a requirement for ob-
taining a scholarship.
15
40 41
(15) Constitutional Court of the Republic of Macedonia, Decision U.no. 138/2010 from 10 November 2010. Once
again the court in this case does not analyse the necessity of the age criterion for acquiring scholarship, but instead fnds
the criterion objective and appropriate, having regard to the fact that the Minister had a legal right to determine the
criteria for acquiring scholarship.
of the rights. From CJEUs practice one can con-
clude that the court does not accept justifcations
of discriminatory treatment based on gender,
which are simply based on fnancial or manage-
rial opinions of employers.
The Directive ought to secure the realisation
of the principle of equal treatment in the feld
of occupation, underlining three areas of action,
namely: access to employment, including vo-
cational training and promotion; working con-
ditions, including pay; and occupational social
security schemes.
The Directive forbids both direct and indirect
discrimination, related to harassment, sexual ha-
rassment, pay and benefts under the occupation-
al social security schema paid by the employer.
The Directive contains provisions concerning
the following three principles: equal pay; equal
treatment in the social security benefts paid by
the employer; equal treatment in the access to
employment, vocational training and working
conditions.
The Directive also points to the principle in-
troduced in article 141 paragraph 4 of the Treaty
establishing the European Community, aiming
to provide equality between men and women in
matters of employment and occupation, whereas
the principle of equal treatment will not be a hin-
drance to member states in taking measures for
positive discrimination, that is, measures putting
the less represented gender in a favourable posi-
tion in order to provide its individuals easier ac-
cess to vocational training or to compensate for
the less favourable position in the development
of their professional career.
This part also includes provisions from Direc-
tive 2002/73/EC related to an enhanced protec-
tion of mothers, fathers, as well as parents having
adopted a child during their leave. Explanation is
also provided about the connection to Directive
92/85/EEC (on the introduction of measures to
introduce improvements to the safety and health
of pregnant workers and workers who have re-
cently given birth or are breastfeeding).
The Directive asks member states to introduce
measures necessary to enable effcient com-
pensation for victims of gender discrimination,
whereas the text provides no upper limit on the
compensation payable.
The Directive foresees provisions as regards
the following: the obligation of each member
state is to assign a body with competences to
promote the principle of equal treatment, as well
as to carry out necessary analyses and monitor-
ing concerning application and regard for the
principle of equal treatment, and also to provide
assistance to victims of discrimination.
The Direction will also stress out the need to
enhance the role of the social partners and civil
organisations in promoting the principle of equal
treatment.
The Directive calls for abolition of or amend-
ment to legislation which is not in line with the
principle of equal pay and the principle of equal
treatment of men and women. Member states
are also obliged to establish a sanctioning sys-
tem marked by effective, proportional and prop-
er penalties aimed for those violating any right
guaranteed by the Directive. Moreover, the Di-
rection calls for the protection of workers, and
of those representing their interests, from any
unfavourable treatment by employers reacting to
initiated court or other proceedings aimed at pro-
viding consistent application of the principle of
equal treatment. Concerning prevention, the Di-
rection recommends that member states encour-
age workers and responsible persons in the feld
of vocational training to undertake measures for
the to prevent gender discrimination, harassment
and sexual harassment. Member states are asked
to take into consideration the gender when pre-
paring legal and other regulations, and when un-
dertaking other activities in the felds covered by
the Direction, and to ensure the widest possible
dissemination of all relevant information to all
parties concerned.
3.2.
NATIONAL LEGAL
FRAMEWORK
sions
The Constitution of the Republic of Macedo-
nia provides for and guarantees a wide range of
human rights and freedoms as the foundation
of the democratic political system. The right to
equality as guaranteed in article 9 of the Consti-
tution of the Republic of Macedonia unequivo-
cally indicates sex as one ground for discrimi-
nation. Henceforth, and in accordance with the
mentioned principle of equality, non-discrim-
ination has been constitutionally proclaimed.
The Constitution of the Republic of Macedonia
also contains several general provisions treating
economic, social and cultural rights, which also
affrm womens special protection, mostly in the
capacity of a mother and a worker, thus serving
as the basis for protective legislation in the feld
of family and labour relations. The Constitution
furthermore foresees that every job is open to all
under equal conditions (article 32).
3.2.2. Law on Labour Rela-
tions
The Law on Labour Relations represents a
basic regulation for the special protection of
women in given labour relations. In terms of the
protection of women, the theory discriminates
between two segments. The frst segment per-
tains to general-specifc protection of women at
work, which implies protection of all working
women regardless of any special conditions or
stages they are in. The second segment concerns
the protection of women in such stages as preg-
nancy, birth and maternity, or that is, protection
of women as mothers (protection of mother-
hood). As regards the protection from discrim-
ination, the Law on Labour Relations pays due
attention to this issue through several articles
(articles 6-12).
In general, the provisions of the Law on La-
bour Relations regarding discrimination can
be divided in two parts, as follows: provisions
concerning the prohibition of direct or indirect
discrimination, harassment and sexual harass-
ment; and provisions concerning exceptions to
the discrimination prohibition, as elaborated in
detail in specifc chapters and paragraphs of this
law for the purpose of protecting a special group
of workers (youth, women, mentally or physi-
cally disabled persons, and senior persons). The
Law on Labour Relations contains a great deal
of provisions related to the protection of women,
such as restriction to perform underground work
(article 160), night shifts for women working in
the industry (article 131), and special protection
of women under pregnancy, birth and maternity
(article 164-171).
Unlike the so called general-specifc protec-
tion encompassing all working women, these
women also exercise special protection rights
ensuing from other social motives and reasons.
Resulting from their special capacity as mothers,
there is a universal consensus, seen in almost all
types of social legislation, to lay down special
protection provisions which provide for specifc
measures protecting women during pregnancy,
birth and maternity. Namely, pursuant to article
25 paragraph 2 of the Law on Labour Relations,
the employer must not inquire about the candi-
dates family or marital status, and about their
family planning. Paraphrasing this provision
and, in addition, invoking the provision provided
for in article 163 paragraph 1, which stipulates
that the employer must not inquire about any
data concerning workers pregnancy, unless she
submits such data in order to exercise her rights
on the grounds of pregnancy, one may conclude
that the employer must not reject womans em-
ployment for her pregnancy, in the same manner
as the employer must not inquire about pregnan-
cy-related data in any other stage of the labour
relations.
Moreover, the Law on Labour Relations stip-
ulates that the employer must not terminate the
employment agreement of the female worker
during pregnancy, birth, maternity, and absence
due to children care. This provision forbids lay-
42 43
offs for any reason (personal, reasons of guilt,
business reasons). In order to improve this le-
gal provision, the decision for the termination
of a pregnant workers employment agreement,
given that the employer had known of her preg-
nancy, should be considered invalid if the work-
er within a given period (as additionally deter-
mined by another provision of LoLR) submits
a medical statement confrming her pregnancy.
There are frequent cases when the employment
agreement is made for a period of time, and so,
if the worker gets pregnant within that period,
the employer refuses to renew the employment
agreement. The pregnant woman thus loses the
rights given on the grounds of pregnancy, birth
and maternity. The legislator should also intro-
duce a provision protecting the pregnant workers
in such cases.
Upon the expiration of the maternity leave the
worker should be restored to the previous posi-
tion. Another issue are the cases when assign-
ment requests to a suitable position results in
lower pay as compared to the previous one. One
also wonders what happens to a pregnant worker
who cannot be given a suitable position. Our law
provides no answer to this question, but some
types of legislation in these cases offer the right
to a paid leave for the pregnant worker up until
the time the maternity leave comes into effect.
Hence, the worker who during pregnancy, owing
to the risk of jeopardising her health and safety,
is neither capable to resume her duties in the po-
sition for which she had concluded an employ-
ment agreement, nor can be given a suitable new
position, should acquire the right to a paid leave.
This might be a useful solution for our legisla-
tion as well (Kalamatiev, Ristovski, p. 63).
Typical of the LoLR is that it allows for an
overall gender equality, offering the possibility
for men, too, to make use of the special pro-
tection rights related to pregnancy, birth and
maternity leave. In regard to the protection of
pregnant women, special signifcance is ascribed
to the Rulebook on the minimum occupational
safety and health requirements for the work of
pregnant workers and workers who have recent-
ly given birth or are breastfeeding, adopted in
2011. Pursuant to article 5 of this Rulebook [t]
he pregnant woman shall use paid leave to per-
form medical examination before giving birth, if
such examination is needed during the working
hours.
3.2.3. Law on Equal Oppor-
tunities of Women and Men
January 2012 saw the adoption of the Law on
Equal Opportunities of Women and Men. This
adoption made further provisions for establish-
ing equal opportunities and equal treatment of
women and men, foresaw the introduction of
basic and specifc measures for establishing
equal opportunities, laid down the rights and ob-
ligations of the parties responsible for providing
equal opportunities, and implemented the pro-
cedure for determining non-equal treatment of
women and men by the Representative for Equal
Opportunities between Women and Men.
The basic objective of the Law on Equal Op-
portunities of Women and Men is the establish-
ment of equal opportunities between women and
men in the political, economical, social, educa-
tional, cultural, health care, civil and any other
feld in society. The law, inter alia, includes def-
nitions for discrimination based on sex, direct
and indirect discrimination based on sex, harass-
ment and sexual harassment based on sex.
Although adopted in 2012, the law, neverthe-
less, has certain faws, in particular concerning
the defnition of direct discrimination (article
4 paragraph 3), where types of involuntary ac-
tion are not mentioned, thus inferring the risk
to exclude a type of action which is not stat-
ed. The provision should be extended in order
to clearly outline the constituent elements of
direct discrimination, and encompass cases of
gender discrimination especially. The indirect
discrimination only points to a condition which
places people of one sex into particularly unfa-
vourable position (article 4 paragraph 5). The
defnition is not entirely in line with Directive
2000/78/EC, since it only stipulates that it places
people of one sex into particularly unfavourable
position, and not that it places or may place them
into particularly unfavourable position. The law
provides a possibility to objectively justify indi-
rect discrimination by a legitimate goal and the
proportionality test.
Article 8 paragraph 1 indicates the entities that
adopt specifc measures, whereas paragraph 4
pertains to the entities which have adopted spe-
cial measures, pointing out that they are to sub-
mit an annual report to the MoLSP not later than
31 March in the current year, relevant for the
previous year. The provision is but declarative,
since it only indicates that certain legal entities
should adopt special measures, and if they have
adopted such measures, but failed to prepare an
annual plan and report, or have failed both to
adopt special measures and to prepare a plan and
a report, no penalty is foreseen. We are of the
opinion that this provision should be modifed so
that it includes all entities, or since it is declar-
ative in nature, no penalty should be foreseen.
As to supervision of the positive measures of
the law relative to the felds in which they were
introduced (article 12 paragraph 1 point 15 and
article 37) no provision provides for the manner
in which the Ministry will conduct supervision,
whether through a special expert service, com-
mittee, etc.
crimination
The Law on Prevention and Protection against
Discrimination is almost entirely harmonised
with Directive 2000/78/EC establishing a gener-
al framework for equal treatment in employment
and occupation. Contrary to the Law on Labour
Relations, which prohibits discrimination in the
feld of labour relations, the Law on Prevention
and Protection against Discrimination extends
the prohibition against discrimination. Regard-
ing discrimination on the ground of sex, article
3 of the law indicates sex as one discriminatory
ground, whereas article 6 defnes sexual harass-
ment as an unwanted behaviour of sexual char-
acter. Articles 14 and 15 provide for the excep-
tions to discrimination, discrimination based on
sex included. Namely, the Law foresees three
types of exceptions to discriminations: affrma-
tive measures, unequal treatment, and protective
mechanisms for certain categories of persons.
Article 14 paragraphs 3 and 4 of the Law, state
that it shall not be deemed discrimination: the
different treatment of persons, inter alia, on the
ground of sex in relation to occupation carried
out in religious institutions or organisations
when, by reason of nature of the particular occu-
pation or activity, or of the conditions in which
it is carried out, the sex constitutes a genuine
and determining requirement for employment;
the different treatment of persons, inter alia, on
the ground of sex in relation to education and
training for the purposes of carrying out the oc-
cupation connected to certain religion. Outlining
the exceptions to discrimination, further on, arti-
cle 15 objectivises certain situations so that they
are not deemed discrimination. For example,
this includes special protection for the pregnant
woman and the mother, as stipulated by law,
except for cases when the pregnant woman or
the mother does not wish to exercise this right to
protection and has notifed the employer in writ-
ing. The same is valid for the measures aimed
at securing a balanced participation of men and
women, as long as these measures are necessary.
3.3.
NATIONAL POLICIES
3.3.1. National Strategy on
Gender Equality for 2013-
2020
The National Strategy on Gender Equality is
a strategic document of the Republic of Mace-
donia aimed at promoting equal opportunities
between women and men in the Macedonian so-
ciety for the period 2013-2020.
The Strategy is an upgrade of the current na-
tional policy translated into the National Action
Plan for Gender Equality 2007-2012 (herein-
44 45
after: NAPGE). This document, among other
things, highlights the signifcance of the gender
equality issue, bearing in mind that is adopted by
the highest representative body in the country,
the Assembly of the Republic of Macedonia. The
Strategy is a document which will provide the
framework for overall equality between women
and men as an intersectoral, horizontal and uni-
versal social and political priority. The document
will also set up the basic steps and specifc direc-
tions for complete achievement of gender equal-
ity in the Republic of Macedonia (Assessment of
the implementation of the 2007-2012 National
Plan for Gender Equality, 2012).
Section 2.1 of the Strategy refers to human
rights/non-discrimination.
The promotion of the human rights of wom-
en and gender equality is a pending task of all
stakeholders. The recent strategic document
NAPGE shows solid realisation of the enhance-
ment of human and women rights, through the
monitoring of and amendments to the domestic
legislation in line with the international stan-
dards and EU directives, through dissemination
of international documents about the rights of
women and establishment of a mechanism re-
cording discrimination on the ground of sex, as
well as through efforts to strengthen institutional
capacities.
As regards decreasing gender-based discrim-
ination in employment, the strategy points out
that economic empowerment of women is a
crucial factor and an objective in achieving gen-
der equality, which includes several elements
aimed toward: eliminating different forms of
discrimination; promoting more and better work
positions for women, in terms of number of em-
ployees and quality of employment, and fnally,
reducing the feminisation of poverty.
Positive progress has been made in the last
several years concerning the implementation of
gender perspective in market policies and strat-
egies.
The Strategy also contains a four-year Na-
tional Action Plan for Gender Equality, which
foresees taking short-term and medium-term ac-
tivities to be realised through annual operation
programmes.
ination on the Grounds of
Ethnicity, Age, Mental/Phys-
ical Disability and Sex for
2012-2015
In May 2012 the Government of the Repub-
lic of Macedonia adopted the National Strategy
on Equality and Non-Discrimination, the aim of
which was to improve the status of the most vul-
nerable categories of citizens in society and to
ensure a continuous development in achieving
equality and non-discrimination. The national
Strategy focuses on four grounds for discrimi-
nation, gender included. Based on the Strategy,
an action plan has also been prepared, with an
aim to provide operational and continuous de-
velopment in the realisation of the right to equal-
ity and creation of equal opportunities related
to discrimination on the different grounds as
defned by the strategy: ethnicity, age, mental/
physical disability and sex.
The document elaborates the general strategic
objectives defned by the strategy and the special
goals concerning the special grounds.
The gender has been incorporated as a hori-
zontal issue relative to the three grounds (age,
ethnicity and mental/physical disability) owing
to dual and multiple discrimination of gender in
combination with other grounds.
3.3.3. National Strategy
on Reduction of Poverty
and Social Exclusion in the
Republic of Macedonia for
2010-2020
The Strategy on Reduction of Poverty and So-
cial Exclusion has been prepared as a document
depicting the intention of the Government of the
Republic of Macedonia to level the degree of in-
clusion and welfare in all strata of society. The
strategy has been designed according to given
felds and areas in which poverty and social ex-
clusion are noticeable.
The strategy contains a separate chapter and
an area concerning equal opportunities for wom-
en and men.
According to the 2007-2012 National Plan
for Gender Equality and the Law on Equal Op-
portunity for Women and Men, stress is put on
the need for a systematic approach, by means
of the gender institutional mechanisms, in close
cooperation with the non-formal prevention and
protection system (NGO sector) on both central
and local level, for the following: preventing
discrimination, especially violence and social
exclusion of the female population, which is
more prevalent in the rural and other smaller
communities, as well as among ethnic groups,
formal protection of womens rights by strength-
ening the capacities of institutions and services,
primarily on local level, and preparing analyses
and inspection of the state of affairs regarding
womens social exclusion.
The specifc strategic objective refers to im-
proving the position of women and reducing
both the level of poverty and the risk from social
exclusion, which will likely result in a reduced
level of risk from social exclusion of women and
a more effective social inclusion of the vulnera-
ble and excluded groups of women.
Concerning womens discrimination related to
employment, signifcant is the fact that women
are less represented in the labour market, due to
their minor participation into the working pop-
ulation, and this is especially valid for women
from the ethnicities. Their participation in the
grey economy is also noticeable, mainly in the
Roma ethnicity, providing assistance within the
family (cleaning, care of children, etc.), care
for the elderly and sick, and also providing as-
sistance in agriculture and craftsmanship. The
active employment policies cover only the cat-
egory of citizens, who have been recorded in the
Employment Service Agency of the Republic of
Macedonia. There is the need to initiate active
employment policies aimed at the inactive cit-
izens and to introduce activities for encourage-
ment and inclusion of the inactive population in
the labour market, women in particular. During
the process of creation, implementation and
monitoring of the active policies for employ-
ment, one should pay due attention to the dual
discrimination and diffculties that rural women
and women from the ethnicities face in the la-
bour market. Institutions in the future ought to
develop methodology which will be instrumental
to the set objectives and the target groups, and to
fnd means of introducing provisional measures
and other mechanisms allowing for an easier ac-
cess for the target groups to these measures.
3.3.4. National Employment
Strategy 2015
The 2015 National Employment Strategy of
the Republic of Macedonia (NES) is a document
encompassing mid-term strategies and challeng-
es on the labour market which relate to the pe-
riod 2011-2015. NES offers an overview of the
economic situation and the situation regarding
the labour market in the Republic of Macedonia,
identifes key challenges related to the labour
market, defnes the strategic priorities and antic-
ipated goals to be achieved by 2015, and deter-
mines the policies that should aid the realisation
of the planned objectives.
The Strategy contains a special part about
tackling unemployment of women, which, de-
spite noting positive trends concerning gender
representation, it is observed that the participa-
tion of women in the labour market is still low.
The activity rate in 2010 measured 50.4%, which
is lower by 27.3% compared to men. The em-
ployment rate in the same period showed 34%,
that is, 18% lower than for men, and the unem-
ployment rate was 32.2%, or 0.3% lower than
for men. This analysis mainly ensues from wom-
ens traditional role in the family, especially in
the ethnic and rural communities. Overcoming
these conditions requires that the objective of the
labour market be a larger integration of women
by increasing their capacity for employment, in
order to achieve an employment rate of 42% by
2015 by the following: increase of competences
46 47
(knowledge, skills and access to work); develop-
ment and provision of employment services and
training tailored to womens individual needs
and conditions; and overcoming the barriers for
the integration to the labour market.
3.4.
SITUATION ANALYSIS
crimination on the ground
of sex
Although women in Macedonia are equal to
men, they are still in an inferior position regard-
ing many felds of social living. As to discrim-
ination of women in employment and in the
course of work, women often face several types
of discrimination, that is, based on gender/men-
tal or physical disability, gender/colour of the
skin, gender/family status, and often are they
also victims of harassment. Women in the labour
market are at more unfavourable position also
owing to their working under no agreement of
employment, or under an agreement for a period
of time, working part-time, which entails lower
pay.
Speaking of discrimination on the ground of
sex, identifying discrimination presents the most
challenging issue (due to both the environment
and the victim of discrimination itself). The
problem becomes obvious when such instanc-
es as absence from public life, greater poverty,
greater illiteracy, dropping out, increased num-
ber of marriages of female children, domestic
violence, are not perceived as manifestations of
gender discrimination.
Even though the country has an anti-discrim-
inatory legislation, whereas occurrences of dis-
crimination are sanctioned, reality reveals more
cases of gender-based discrimination especially
obvious in employment advertising. It is a fact
that discrimination in general is hard to eradicate
because of several parameters and several bene-
fts to the employers. One reason for women be-
ing discriminated according to employers is the
potential diffculty in fnding proper substitution
during womens pregnancy, giving birth and care
for children, and in cases of a senior woman or
a woman with disability, employers are of the
opinion that these women are less productive.
Surveys show that gender discrimination is a
somewhat rarer form of discrimination. It is seen
as more common by the Albanian community
(probably among Muslims), but not by wom-
en. At the same time, discrimination is ranked
among those forms of discrimination with the
lowest rise in frequency in the last fve years
(mostly showing stagnation) and it is seen as
being commonly linked with discrimination on
other grounds. Results show low share of victims
of gender-based discrimination. There are more
victims among Albanians and among Muslims,
than among Macedonians and Orthodox Chris-
tians. Victims of gender-based discrimination
are very likely to be victims of discrimination on
other grounds (Petrovska Beshka, Najchevska,
2009, p. 49).
Most common type of discrimination on the
ground of sex are the vacancy announcements.
In the advertisements there is not only gen-
der-based discrimination, but also age-based
discrimination (Survey of the discriminatory
employment advertisements, 2013).
In terms of the economic status in 2011, wom-
en had a 24.8 percent share into the Employer
category from the total number of employers
(as opposed to mens share of 75.2 percent),
17.9 percent into the Self-employed category
from the total number of persons in this category
(as opposed to 82.1 percent men). On the other
hand, in the category of Unpaid family work-
ers women are represented with 61.7 percent
(Labour Force Survey, 2011).
ground of sex
According to the sources of the Commission
for Protection against Discrimination the sub-
missions for the most part concern working
and work relations, which points to the fact that
discrimination is most prevalent in the above-
mentioned areas, but as regards discrimination
on the ground of sex in the feld of employment,
the situation is somewhat different for the small
number of reports submitted on this grounds.
Namely, in 2011 there is no submissions whatso-
ever on the ground of sex, whereas in 2012 there
are 3 submissions, and in 2013 5 reports were
submitted regarding work relations.
Typical of the submissions is that, besides gen-
der, for most of them other type of discriminato-
ry grounds is seen, such as age, health condition
pregnancy, family status and other (2011 and
2012 CPD Annual Report). The Commission has
not confrmed gender-based discrimination on
any submission in the three years stated.
The situation is similar for the legal represen-
tative as well. A report for discrimination on the
ground of sex concerning employment was sub-
mitted only in 2012, upon which no discrimina-
tion was confrmed (Analysis of the degree of
implementation of the Law on Equal Opportuni-
ties of Women and Men, 2011, p. 21).
The 2012 report of the Ombudsman, regard-
ing gender-based discrimination only noted
some progress in the area, whereas the Om-
budsman recommends continued efforts toward
equal gender representation. In his report, the
Ombudsman maintains that citizens still rarely
report unequal treatment discrimination, and
institutions take little care for the nature of the
violation (2012 and 2013 Annual Report).
From the practice of the State Labour Inspec-
torate one can notice the trend of hiring women
for a period of time, whereas if the woman gets
pregnant during that period, the employer does
not offer the woman a new contract of employ-
ment, even though her position is not terminated,
but simply flled in by a new person. The inspec-
torate is unable to act upon such cases, since no
protection of the kind if provided for in the Law
on Labour Relations, simply because the work
relation stops for the expiring of the period of
conclusion. The labour inspectorate can only act
upon contracts concluded for full-time employ-
ment where it is obvious that the worker is laid
off due to her pregnancy, in which case the in-
spectorate acted in several instances ordering the
employer to revoke the termination decision and
to bring the worker back (2011 and 2012 Report
on the work of the State Labour Inspectorate).
Regarding judicial practice, no legal dispute
has so far been noted regarding gender-based
discrimination in employment, according to the
Law on Prevention and Protection against Dis-
crimination. Analyses indicate that in the period
15 November 2012 to 15 May 2013 a total of
nine proceedings for discrimination in the work-
place (mobbing) were noted, all of which were
initiated in line with the Law on Labour Rela-
tions. Four lawsuits were fled by women, which
related to harassment in the workplace (Analysis
of the practical application of the Law on Pre-
vention and Protection against Discrimination,
2013). This state of affairs points to the fact
that although women face discrimination in the
workplace, they are still discouraged to initiate
legal proceedings, mostly because they fear for
their jobs, believe that they will be victimised by
their employers for fling a lawsuit, or because
of other actions.
48 49
Discrimination based on mental and physical
disability is widely prevalent in the Republic
of Macedonia. Surveys show that 33.5% of the
Macedonian adult population consider to have
been victims of discrimination of harassment on
the last 12 months. The perception of discrimi-
nation on the grounds of mental or physical dis-
ability is quite high, that is, 45% of the respon-
dents believe that discrimination on the grounds
of disability is very common to our society
(Petrovska Beshka, Najchevska, 2009). When
in addition, one considers the opinion of more
than half of the respondents (51%), who think
that discrimination on many grounds is frequent,
and a total of 55.6% of the respondents, who are
ignorant of their rights in case they become vic-
tims of discrimination, the situation is alarming.
Another survey also showed similar results
where the perception of discrimination on the
grounds of mental and physical disability is quite
high, that is, 48.8% and 49.5% of the respon-
dents fnd discrimination on the grounds of men-
tal disability and physical disability, respective-
ly, to be quite common to our society. Worrisome
is the fact that 23.6% of the respondents would
feel uncomfortable in the company of a person
with mental disability, which often results from
stereotypes and prejudices about alleged insan-
ity connected to this group of people, and this
represents a serious trigger for future discrimi-
nation against them. In addition, 29.9% of the
respondents would not vote for a candidate or
other offcial with physical disability, which is
another refection of the entrenched stereotypes
abut people with disability as individuals to be
taken care of by family and society, and not as
individuals who can make decisions for them-
self, and much less for others. (Simoska, Gaber,
Jovevska, Atanasov, Babunski, 2008). Yet, these
surveys are based on citizens perception and
cannot be substantiated by facts. They are nev-
ertheless a signifcant tell-tale for the current sit-
uation of these persons.
4.1.
INTERNATIONAL
LEGAL STANDARDS
The international legal standards undubious-
ly point out that the right to a decent job and
freedom of choice in employment, inter alia,
for persons with mental and physical disability
is essential to their living and welfare. The pro-
tection of this right, therefore, is clearly regulat-
ed by the International Covenant on Economic,
Social and Cultural Rights. The right to job is
provided for in the intertwined articles 6-8, and
the antidiscrimination clause is contained in arti-
cle 2 paragraph 2 of the Convention. Of special
interest to the persons with mental and physical
disability is the General Comment No. 5 to this
Covenant referring to this group, which states
that through neglect, ignorance, prejudice and
false assumptions, as well as through exclusion,
distinction or separation, persons with disabili-
ties have very often been prevented from exer-
cising their economic, social and cultural rights
on an equal basis with persons without disabili-
ties. The effects of disability-based discrimina-
tion have been particularly severe in the felds
of education, employment, housing, transport,
cultural life, and access to public places and ser-
vices (paragraph 15). This is supported by the
fact that the unemployment rate of these persons
is three times the rate of the general population,
and that these persons usually have the lowest
paid jobs and are often segregated from the open
labour market. Thereby it is pointed out that the
right to employment is not realised when the
only real opportunity open to disabled workers
is to work in so called sheltered facilities under
substandard conditions (General Comment No.
5, 1994, paragraphs 20-27, pp. 5-6).
Within the regular reporting in relation to this
Covenant, of great relevance are the concluding
remarks of the Committee on Economic, Social
and Cultural Rights prepared upon the initial re-
port for the Republic of Macedonia concerning
the implementation of ICESCR in 2006. The
Committee, namely, gives constructive criticism
about the exceptionally high unemployment rate,
especially, inter alia, in relation to persons with
mental and physical disability (paragraph 15)
and asks the state in the next report to include
statistical data on unemployment also viewed by
disability (paragraph 35). However, despite the
fact that as a universal instrument ICESCR is
also applicable to persons with disability, prac-
tice shows that this rarely happens. For these
reasons, this gap was flled by adopting the Con-
vention on the Rights of Persons with Disabili-
ties, elaborated further in the text. It should be
underlined that these legal instruments are rat-
ifed by the state and pursuant to article 118 of
the Constitution they represent part of its inter-
nal legal order.
4.1.1. UN Convention on
the Rights of Persons with
Disabilities
The Convention on the Rights of Persons with
Disabilities (hereinafter: CRPD) and the Option-
al Protocol to it were ratifed in 2006, and en-
tered into force on 3 May 2008. Presently, 156
countries have signed the CRPD, whereas 132
have ratifed it, 91 has signed the Optional Pro-
tocol, and 77 have ratifed it. The Republic of
Macedonia signed the CRPD on 30 March 2007,
and ratifed it on 5 December 2011. Further-
more, the country signed the Optional Protocol
to CRPD on 29 July 2009, and ratifed it on 5
December 2011.
CRPDs text consists of a preamble and a ba-
sic text numbering 50 articles, most of which
are hybrid in character, that is, they are inter-
dependent and inseparable, divided into fve
groups, as follows: introductory articles (articles
1-2), general articles (articles 3-9), substantive
articles (articles 10-30), articles regulating im-
plementation and monitoring (articles 31-40),
and technical articles regulating issues about
signing, accession, ratifcation and entering into
force (articles 41-50).
A major part of CRPD pertains to issues of
discrimination on the grounds of mental and
physical disability, which is the subject of in-
terest of this analysis. There is also a separate
article, article 5, which has been deliberately
placed in the frst part of the Convention with
the other articles of general (horizontal) appli-
cability, which allows all CRPD provisions to
be interpreted through a non-discrimination and
equality-based approach. The language of this
article hints that disability-based discrimination
is prohibited, and implies not only protection of
persons with mental and physical disability, but
instead paves the way to protecting the persons
who may in the future gain disability, persons
believed to have some kind of disability, as well
as persons who are in a close relation to a dis-
abled person, and may be discriminated against.
Pursuant to article 5 paragraph 2, member states
are obliged to prohibit all discrimination on the
basis of disability, which, as stipulated in arti-
cle 2, means any distinction, exclusion or re-
striction on the basis of disability which has the
purpose or effect of impairing or nullifying the
recognition, enjoyment or exercise, on an equal
basis with others, of human rights and funda-
mental freedoms in the political, economic, so-
cial, cultural, civil or any other feld. It includes
all forms of discrimination including, denial of
reasonable accommodation. This clearly entails
that prohibiting discrimination based on mental
and physical disability focuses on the outcome,
instead of the doers intention.
50 51
Mental and physical disability
4
The CRPD also makes crucial progress, not
only by stating that any unjustifed denial of
reasonable accommodation is discrimination,
but also by incorporating this position into an
article with horizontal applicability, thus urging
its application throughout the entire CRPD. This
would be a serious challenge to all countries,
developed countries included. Finally, article 5
paragraph 4 provides for specifc measures nec-
essary to accelerate or achieve de facto equality
of persons with mental and physical disability,
for the purpose of reducing the gap between the
norm and reality.
The analysis of employment and work rela-
tions should inevitably address article 27 of the
Convention, which relates to this feld specifcal-
ly. Namely, the article urges states to recognise
the rights of persons with disabilities to work, on
an equal basis with others; [...] to gain a living by
work freely chosen or accepted in a labour mar-
ket and work environment that is open, inclusive
and accessible to persons with disabilities. The
list of measures to be taken by member states
in order to effectuate this right, frst includes
prohibiting discrimination on the grounds of dis-
ability in all forms, sectors and levels of work.
This refers to prohibiting discrimination with
regard to recruitment, hiring and employment,
and also to providing safe and healthy working
conditions (article 27 paragraph 1 point a). The
same is valid for the prohibition of harassment,
as well as provision of just and favourable con-
ditions and equal remuneration for work of equal
value (article 27 paragraph 1 point b). Further-
more, countries are obliged to provide reason-
able accommodation to persons with disabilities
in the workplace (article 27 paragraph 1 point
i). For that purpose, countries in their national
legislation should determine the elements of ac-
commodation, as well as the facts on which its
appropriateness/rationality will be assessed. An-
other aspect covered in this article is the protec-
tion of labour and trade union rights of persons
with disabilities on equal grounds with others
(article 27 paragraph 1 point c), which creates
the prerequisites for the countries to provide
that trade unions are accessible to persons with
mental and physical disabilities and are open to
include them.
4.1.2. Council Directive
2000/78/EC establishing
a general framework for
equal treatment in employ-
ment and occupation
Resulting from the amendments introduced to
the 1997 Amsterdam Treaty, that is, by means of
article 13, the Community gained the capacity
to combat discrimination on six grounds, men-
tal and physical discrimination included. In re-
lation to the multiple discrimination in general,
and specifcally in the feld of employment and
work relations, one must recognise the Charter
of Fundamental Rights
16
, Directive 2000/78/EC,
and the two gender-related directives (2004/113/
EC and 2006/54/EC).
Directive 2000/78/EC of 27 November 2000
establishing a general framework for equal
treatment in employment and occupation (here-
inafter: Directive 2000/78/EC), is of utmost
importance to prohibiting discrimination on the
grounds of mental and physical disability re-
garding this wide feld. Ratione materiae of the
Directive 2000/78/EC is prohibiting discrimi-
nation, inter alia, on the ground of disability in
work relations. It prohibits direct and indirect
discrimination, harassment and instruction to
discriminate (article 2), as well as victimisation
(article 11) performed by natural or legal persons
as regards both public and private sectors (article
3), whereas it also provides for the prospect of
securing reasonable accommodation to persons
with physical and mental disability (article 5), as
well as taking positive actions (article 7).
According to article 3 paragraph 1, this per-
tains to conditions for access to employment,
to self-employment or to occupation, including
selection criteria and recruitment conditions
(point a); access to all types and to all levels
of vocational guidance, vocational training,
advanced vocational training and retraining,
including practical work experience (point b);
employment and working conditions, including
dismissals and pay (point c); membership of,
and involvement in, an organisation of workers
or employers, or any organisation whose mem-
bers carry on a particular profession, including
the benefts provided for by such organisations
(point d). Payments on the grounds of social
protection have not been included in Directive
2000/78/EC, whereas it lacks application in the
armed forces as well.
As to the rationale personae, Directives aim
is to set up a general framework to combat dis-
crimination on four grounds, including mental
and physical discrimination, in employment, oc-
cupation and training (article 1). The terminolo-
gy used in article 1 of the Directive points to the
fact that it is more focused on the individual than
on the group to which the individual belongs,
that is, it does not protect the group, but it pro-
hibits discrimination, inter alia, on the grounds
of disability. This group is deemed protected
only in regard to indirect discrimination (article
2 paragraph 2 point b), positive action (article
7), and to some extend as regards reasonable ac-
commodation (article 5), that is, in cases when
the concerned persons with disability needs to
show their connection to the wider group. The
problematic aspect is that Direction 2000/78/EC
does not defne discriminatory grounds, and this
issue, however, was tackled considering the ju-
dicial practice of the EU Court of Justice, more
specifcally in the cases Chacn Navas, Coleman
and Jette Ring (Poposka, 2013 pp. 16-20).
Directive 2000/78/EC is horizontal in char-
acter, that is, its application and binding force
pertain to both the public and private sector.
And yet, the directive does not produce a direct
horizontal effect, since natural persons can sub-
mit a request to other physical or legal person
strictly based on a provision ensuing from the
national legislation having transposed this direc-
tive. At the same time it embraces a minimalistic
approach, for it defnes the objectives it wants to
reach, whereas it bounds countries to minimum
obligations, thus leaving them the freedom to
choose their own mode of realisation through
their national legislation, and allowing them to
adopt and implement provisions which are more
benefcial, inter alia, to the disabled persons (Tri-
dimas, 2000, p. 69).
4.2.
NATIONAL
LEGAL FRAMEWORK
Regarding national legislation, there are sev-
eral provisions which, directly or indirectly, re-
fer to protection from discrimination for persons
with physical and mental disability
17
in the feld
of work relations, and they may be considered
a ground whereon in the future judicial practice
may be developed and upgraded through amend-
ments to the existing laws.
sions
The Constitution of the Republic of Macedo-
nia, in article 32 stipulates the right to work and
related rights thereof. This right is of general
applicability and foresees that everyone [includ-
ing persons with physical and mental disability]
has the right to work, to free choice of employ-
ment, protection at work and material assistance
during temporary unemployment (paragraph 1).
In addition, it is stated that every job is open to
all under equal conditions (paragraph 2), where-
52 53
(17) Legislation abounds in terms referring to this group of persons. The author opts for the term persons with men-
tal and physical disability as the term being used in the National Strategy on Equality and Non-Discrimination, but in
quoting legal texts and policies the original terms of the cited document is used.
as every employee has a right to appropriate re-
muneration (paragraph 3), as well as the right to
paid daily, weekly and annual leave (paragraph
4). The rights are further regulated by law and
collective agreements (paragraph 5). Article 35
paragraph 3 stipulates that the Republic provides
protection for invalid persons, as well as condi-
tion for their involvement in the life of the soci-
ety. Article 32 paragraph 2, that is, the non-dis-
crimination clause, should be read in line with
article 9 of the Constitution, which contains the
equality clause explained above.
4.2.2. Law on Labour Rela-
tions
Relevant in regard to the work relations of
people with mental and physical disability is
the Law on Labour Relations and the Law on
Employment of Persons with Disability as lex
specialis, elaborated below. Here we dwell on
the non-discrimination clauses of the law only.
Namely, article 6 of the Law on Labour Relations
unequivocally prohibits discrimination, per se,
including disability-based discrimination done
by natural or legal persons in both the public and
private sector. The law in question prohibits all
forms of discrimination, including direct (article
7 paragraph 2), indirect (article 7 paragraph 3)
and harassment (article 9 and 9a) of the employ-
ment candidate and the worker. Discrimination
is prohibited in regard to conditions for access to
employment, to self-employment or to occupa-
tion, including selection criteria and recruitment
conditions; access to all types and to all levels
of vocational guidance, vocational training, ad-
vanced vocational training and retraining, in-
cluding practical work experience; employment
and working conditions, including dismissals
and pay; membership of, and involvement in,
an organisation of workers or employers, or any
organisation whose members carry on a partic-
ular profession, including the benefts provided
for by such organisations (article 7 paragraph 4).
One drawback is the fact that the law neither
provides for the instruction for discrimination,
nor does it clearly prohibit discriminatory adver-
tisements or statements grounded on mental or
physical disability. The Law in article 24 para-
graph 1 unequivocally prohibits the discrimina-
tory advertisements on the ground of sex, and
stipulates that: [t]he employer shall not adver-
tise the job position only for men or for women,
unless the designated gender is a prerequisite to
performing the work. In the future, this should
be amended and harmonised with the interna-
tional non-discrimination standards.
Of special interest is the provision of the law
stipulating that [i]n concluding a contract of
employment, the candidate shall not be obliged
to submit a proof of their health condition, un-
less the employer sends the candidate to an ex-
amination at own expense (article 25 paragraph
5), complemented by the following provision:
[t]he examination of the knowledge or skills,
or the determination of candidates health con-
dition shall not pertain to circumstances unrelat-
ed to the work on the given position which is
the subject of the employment contract (article
25 paragraph 6). These provisions fully meet
the standards for protection against discrimina-
tion of persons with mental or physical disabil-
ity, but, nevertheless, they are being derogated
if one takes into account the provisions of the
Law on Civil Servants (concerning employment
in the public sector), whereby the general health
capability is stated as a requisite for employment
(article 9 paragraph 6, and article 13 paragraph
2 point 3). Formulated thus, the provision, al-
though seemingly neutral, still has a dispropor-
tional adverse effect to the disabled persons,
since the entire group a priori is prevented from
applying for employment. Although this criteri-
on would be valid for some groups of persons
with disability, still, for the persons with physi-
cal or sensory disability, who are of psychophys-
ically capable to carry out the essential tasks on
the job, this criterion bears no is irrelevant, and
therefore extremely discriminatory. For this rea-
son, there should be a distinction between health
condition and work capability for persons with
disabilities, so that these two are not equated
(Poposka, 2013, pp. 23-24).
The same type of provisions can also be de-
tected in the Law on Courts (article 45 paragraph
1 point 3), the Law on Advocacy (article 12), the
Law on Police (article 95), the Law on Military
Service (article 31), the Law on Foreign Affairs,
and others. Although this criterion does not al-
ways entail discrimination, it should be revised
and put under judicial control. Authors, there-
fore, suggest reconsidering this criterion, which
limits the accessibility of disabled persons to
work positions in the state administration, judi-
ciary and legal practice, and providing specifca-
tions in line with article 25 of the Law on Labour
Relations, that is, putting this condition within
the context of the occupation itself.
Besides the non-discrimination provisions,
the Law also foresees special protection, inter
alia, for the persons with mental and physical
disability (articles 122, 161-162, 164 and 169,
177-178). In addition to the special protection of
workers with disability, the Law on Labour Re-
lations also offers protection of workers who are
parents of children with disability. For example,
according to the law, one of the parents of a child
with developmental problems and special educa-
tional needs has a right to work half the working
hours, whereas the shortened working hours will
be considered full working hours (article 169).
Moreover, pursuant to article 137 paragraph 3 of
the Law on Labour Relations, inter alia, a dis-
abled worker with at least 60% bodily impair-
ment and a worker caring for a child with physi-
cal or mental disability have a right to additional
three working days of annual leave.
4.2.3. Law on Employment
of Persons with Disability
As regards persons with disabilities in the
feld of employment, that is, concerning specif-
ic conditions for their employment and work,
one needs to mention the Law on Employment
of Persons with Disability. Article 1 of the Law
stipulates that [t]his law shall regulate the spe-
cifc conditions for the employment and work
of persons with disabilities in performing their
occupation independently, under an employer
or an acting employer, as well as the conditions
establishing a trade company for employment of
persons with disabilities, and the benefts there-
of. Practice shows that it fails to cover all cate-
gories of persons with disability, especially those
performing their occupation or profession inde-
pendently, that is, they work in the capacity of:
lawyer, doctor, notary, and the like, thus being
unable to realise the benefts ensuing from the
law. From the analysis of the provision it follows
that the article in itself is rather vague, owing to
the fact that it mentions categories of persons
which the Law on Trade Companies does not rec-
ognise, since a sole proprietor is a natural person
who performs a commercial activity, whereas it
is unclear how a person independently perform-
ing an activity can do so in the capacity of a sole
proprietor. This vagueness requires an authentic
interpretation of this provision in order to make
it clearer, whereas it also allows for amendments
and adjustment with the categories recognised
by the Law on Trade Companies.
A positive aspect is that article 4 of the law
foresees a great number of stimulative measures
aimed at improving the conditions for employ-
ment of persons with mental and physical dis-
ability, such as: awarding of non-refundable
funds for full-time employment of persons with
disabilities, accommodations of the position des-
ignated for the disabled person, should there be
need, procurement of equipment, tax exemption
and securing contribution funds, and fnancial
assistance in working. The stimulative measures
are valorised into a number of monthly pays as
non-refundable funds paid to the Special Fund
formed in line with this Law. These are basical-
ly solid solutions, which have been classifed
as positive action. Still, in a given case, there
should be an option to have them revised by the
54 55
court in order to assess their appropriateness,
especially in view of the serious concern about
it being misused by the employers, and by the
trade companies, in particular.
Creating opportunities for employment of per-
sons with mental and physical disability, with no
exception, entails providing reasonable accom-
modation for this group of persons in the process
of carrying out job interviews, and regarding the
work position. Therefore, article 7 paragraph 2
of the Law provides for reasonable accommoda-
tion concerning persons with disabilities, stating
that [i]n hiring a person with disability, the em-
ployer shall create proper work conditions and
adaptations to the work place depending on the
position, the type and level of education, and the
type and level of disability of the disabled person
being hired. The legislator fails to elaborate this
provision in more detail, thus omitting to point
out the type of conditions the employer ought
to create. For example: whether they should
encompass accommodation to the interviewing
process in employment, accommodation to the
working hours and practices, and even provision
of a professional vocational trainer. By not clar-
ifying the provision, it is left to the courts to de-
lineate the borders of these legal practices.
The legislator, furthermore, does not give a
detailed explanation as to the kind of adaptation
to the work place to be made, but, nevertheless,
this has been better elaborated in the Rulebook
on the criteria and means to award non-refund-
able funds from the Special Fund for improve-
ment of the conditions for employment and work
of persons with disabilities. Pursuant to article
7 paragraph 2 of this Rulebook, the adaptation
encompasses accommodation to the working
and utility rooms, to the equipment, working
resources, devices and other technical aids. A
positive aspect is that besides the obligation to
reasonable accommodation, the Rulebook also
provides for funds secured through a Special
Fund for improvement of the conditions for em-
ployment and work of persons with disabilities
(articles 8 and 20). But, what is concerning is
the fact that the funds contained within the Spe-
cial Fund are constantly reduced, hence causing
a lack of funding for employment and reason-
able accommodation aimed at persons with dis-
abilities. Namely, during the period 2000-2013
this law went through 8 amendments, whereas
the funds from the special Fund were reduced
from the initial 15% to 5% of the total funds
from the employment contributions. The authors
also maintain that the Special Fund should be
abstracted as a legal person in order to strength-
en its role and capacity in the system, and to di-
minish the chances of any misuse. And fnally,
what is being foreseen is a limited opportunity
to utilise this legal practice, that is, a limitation
to the personal scope of protection. In order for
a person to be able to seek reasonable accommo-
dation, they should be employed in the private
sector and to have their disability recognised in
accordance with the law (Poposka, 2012, pp.
302-304).
From the aspect of non-discrimination, dis-
putable is the provision in article 4a paragraph
5, whereas it is foreseen that [a] person with
disability can be an employer or a person in the
function of a responsible person under an em-
ployer, if this person acquires a positive opinion
from the Commission of the Ministry of Labour
and Social Policy ... Although the authors be-
lieve that it wasnt legislators intention to dis-
criminate against the persons with disabilities,
but instead acted to their protection (especially
concerning persons with mental disability) in the
attempt to protect them from possible mistreat-
ment, nevertheless, the formulation of the pro-
vision seeking a statement or an opinion about
the capability of the disabled person to perform a
managing function is discriminatory and should
be abandoned. The provision is a classical exam-
ple of discrimination beginning as a harassment
and based on law.
At the end, of special interest is the matter of
sheltered facilities. The law and the two rule-
books thereof regulate the issue of employing
disabled persons in the sheltered facilities. Arti-
cle 9 of the law defnes the sheltered facility as a
[t]rade company with at least ten persons with
full-time employment, if at least 40% of the total
number of employees are persons with disabili-
ties, whereas at least half of them are with con-
frmed disability. The sheltered facilities are ex-
empted from income tax and all income-related
expenditures, and employees of the sheltered fa-
cilities who are not disabled are exempted from
paying personal income tax, whereas the funds
for the pension and disability fund are provided
by the state. Another benefcial point is that em-
ployment into the sheltered facility is considered
regular employment according to the national
legislation. One must not forget, though, that the
employment into a sheltered facility should be
but a transition for the persons with disability to
a fully pledged employment in the labour market
and the public sector, without any derision to the
latter.
crimination
The employment of persons with mental and
physical disability is inevitably linked to the cre-
ation of employment opportunities, by guaran-
teeing this right in equal basis with others. Every
right, including the right to work, is therefore
connected to the non-discrimination clauses,
and it should be analysed from that aspect, too.
Although the non-discrimination clauses are
contained in the Law on Labour Relations an-
alysed above, still, speaking of disability-based
discrimination it is exceptionally important to
mention the Law on Prevention and Protection
against Discrimination.
As analysed previously, the Law prohibits all
forms of discrimination committed by natural
and legal persons in both the public and the pri-
vate sector, inter alia, in the area of work and
labour relations (article 4). Of special relevance
for the disabled is article 5 paragraph 1 point 12
and article 8 paragraph 2, which stipulates the
provision of reasonable accommodation. The
Law stipulates that [a]djustment of the infra-
structure and the services is adopting appropri-
ate measures required in some particular case, on
order to provide to the person with intellectual
and body disability, the access, the participation
and advancing in the labour process, unless these
measures impose disproportionate encumbrance
to the employer. The criticism of this provision
pertains to its being restrictive, that is, it relates
solely to the adjustment of the infrastructure and
the services. Moreover, the Law does not defne
the term appropriate measures regarding per-
sons with disability, except for clarifying that
they are individualised, or needed in the given
case. The law also does not differentiate between
important and basic work place functions, on the
one hand, and marginal and irrelevant functions,
on the other, which presents a serious drawback
in this provision. As to the matter of dispropor-
tionate encumbrance, as formulated within the
Law, the national legislation, unlike other coun-
tries, neither analyses it, nor does it condition it
with the size and the status of the legal persons
(public or private), the fnancial costs, employ-
ers turnout and source of funding, as well as the
possibility to acquire public funds or any other
assistance. The authors believe that any amend-
ments to this law require unequivocal placement
of this clarifcation. (Poposka, 2012, pp. 302-
303).
Articles 13-15 provide for the exceptions to
discrimination, whereas those relevant to the
persons with mental and physical disability are
the following: no action will be deemed dis-
crimination if it is a measure foreseen by law
and aims at employment promotion (article 15
paragraph 1 point 2)3; in providing for a genu-
ine and determining requirement in employment
56 57
(article 14 paragraph 1 point 2); in special cases
when affrmative measures are taken (article 13);
in different treatment of persons with disabilities
in training and acquiring education to the effect
of satisfying special educational needs aiming
at equalisation of opportunities (article 15 para-
graph 1 point 3); in providing special protection
stipulated by law, inter alia, to persons with men-
tal and physical disability (article 15 paragraph
1 point 7).
4.3.
NATIONAL POLICIES
Equal Rights of Persons
with Disabilities for 2010-
2018
In the course of promoting the status of the
persons with mental and physical disability, and
their integration to the social trends, the Govern-
ment in 2010 adopted the revised version of the
2010-2018 National Strategy on Equal Rights of
Persons with Disabilities. The national strategy
is a plan including many activities ensuing from
CRPDs principles aimed at promoting the sta-
tus of persons with disabilities to a position of
equal citizens with all rights and responsibili-
ties (National Strategy, 2010, p. 15).
It covers seventeen separate units of action,
among which is the area of professional and
occupational orientation, and employment, of
persons with disabilities, the aim of which is to
secure equal opportunities for work and employ-
ment to disabled persons, by developing and ap-
plying systemic solutions based on the needs and
capabilities. The following measures are fore-
seen for achieving this objective: strengthening
the capacity of all concerned institutions; devel-
oping mechanisms and resources for profession-
al rehabilitation, and development of vocational
and professional training; motivating the persons
with disabilities; developing the mechanisms
for assessment of the working capability of this
group of workers; and promoting the employ-
ment information systems (National Strategy,
2010, pp. 23-24).
ination on the Ground of
Ethnicity, Age, Mental/Phys-
ical Disability and Sex for
2012-2015
The 20120-2015 National Strategy on Equal-
ity and Non-Discrimination and the 2012-2013
Operational Plan for Non-Discrimination on
the Ground of Mental and Physical Disability
are key documents considering the issue of pro-
tection against discrimination on the ground of
mental and physical discrimination, inter alia, in
the area of employment, in terms of policies. The
national strategy aims at improving the status of
the most vulnerable categories of citizens in so-
ciety, including disabled persons, and at securing
a continuous development in attaining equality
and non-discrimination.
The National Strategy and the Operational
Plan address four distinctive strategic objectives,
which refer to: promotion of the employment
and work opportunities for persons with mental
and physical disability on equal grounds with the
others (strategic objective I); provision of educa-
tion to persons with mental and physical disabil-
ity on equal grounds with the others (strategic
objective II); provision of access and accessibil-
ity for persons with mental and physical disabil-
ity in the area of transport and communication
(strategic objective III); and provision of access
to goods and services for the disabled persons on
equal grounds with the others (strategic goal IV).
From the abovementioned it is obvious that
strategic objective I pertains to employment,
whereas it underlines the reasonable accommo-
dation to the work place for persons with disabil-
ities, that is, enhancing the capacity of all stake-
holders regarding the translation of this norm
into practice. At the same time, the amendments
to the Law on Employment of Persons with Dis-
ability, the numerous adjustments made, and also
the raised awareness of the employers in relation
to this legal norm are all considered as indicators
showing the successfulness of implementing this
strategic objective (National Strategy, 2012, pp.
27-28).
The strategic objective was further elaborat-
ed in the 2012-2013 Operational Plan, which
puts stress on the following: promoting the le-
gal framework, strengthening the capacity of all
concerned institutions; identifying the models
for inter-institutional cooperation, developing
vocational and professional training, as well
as motivating the persons with disabilities; de-
veloping the mechanisms for assessment of the
working capability of this group of workers; and
promoting the employment information systems;
and introducing affrmative measures (positive
action) for their employment as active employ-
ment measures, such as empty seat quotas, and
the like (Operation Plan, 2013, pp. 20-24).
Reduction of Poverty and
Social Exclusion for 2010-
2020
The 2010-2020 National Strategy on Reduc-
tion of Poverty and Social Exclusion considers
four priority areas as follows: employment; in-
formal economy and enhancement of entrepre-
neurship; labour marker; and poverty and social
inequality. It should be highlighted that although
the persons with disability have not been explic-
itly discerned as the Strategys particular target
group, still, in area 1, which refers to employ-
ment, special focus if given to creating equal
opportunities in employment of persons with
special needs (result no. 4). Two activities are
mentioned as within this result: The frst pertains
to creating equal opportunities for persons with
special needs through the preparation of special
rehabilitation and integration programmes fol-
lowed by fnancial aid on both state and local
level. The second concerns the employment of
these persons by making efforts and providing
funds to improve their skills and knowledge
(National Strategy, 2010, pp. 35-39.) \
4.3.4. National Employment
Strategy 2015
The basic document and a framework defning
the employment policies is the 2015 National
Employment Strategy, which, in its priority ob-
jectives, unfortunately does not precisely cover
the increase of the employment rate for persons
with disabilities. Bearing in mind that these
persons as a group are marked by a high unem-
ployment rate and a low labour-market activity
rate, their lack of coverage in the Strategy gives
room for concern. These persons are only to be
included within the wide defnition of the term
other vulnerable groups covered in Guideline
7: Increased participation into the labour market
and reduced structural unemployment, of the
Strategy.
In addition, the National Employment Strat-
egy is carried out through the 2012-2013 Na-
tional Action Plan on Employment. The analysis
of this action plan reveals that the persons with
disability have been directly mentioned only in
Goal 3: Increasing employability (in Activity 7 -
ECDL training and certifcation of unemployed
persons and persons with disability), and Goal
4: Social inclusion of disabled persons and other
vulnerable groups (in Activity 1 - Subsidies for
the employment of disabled persons according
to the Law on Employment of Persons with Dis-
ability). This merely reiterates the lack of strate-
gic approach to this group of persons (Poposka,
2013, p. 34).
58 59
From the analysed above it can be concluded
that in the lack of essential criteria, affrmative
measures and other mechanisms supporting and
covering persons with mental and physical dis-
ability, the active employment policies wiould
not be able to reach the desired goals set in the
National Employment Strategy, thus marginalis-
ing this group of citizens even further.
4.4.
SITUATION ANALYSIS
of mental and physical dis-
ability
The number of employed persons with mental
and physical disability compared to the overall
population employed in the Republic of Mace-
donia is quite small. The number of employed
persons with disabilities measures 2,394, 814
of whom are women, and in addition to this, the
number of persons with mental and physical dis-
ability on rehabilitation is 147, whereas 42 are
women (State Statistical Offce, No. 2.4.11.16,
2011, pp. 28-29). From those employed and sent
to rehabilitation, most of the persons are with de-
velopmental disability (1,081 persons), then with
physical impairment (538 persons), with hearing
impairment (286 persons), and fnally those with
vision impairment (172 persons), whereas there
is also a category of others (465 persons).
At this point, the unemployed persons with
mental and physical disability are distributed
among all age groups (aged 15 to 60 and above),
most of whom have low qualifcations, that is,
1,569 persons, whereas only 35 persons have
higher or university education (Employment
Service Agency, 2010). Namely, from the total
number of unemployed persons with disability,
858 are persons with mental disability, 448 are
persons with physical disability, 301 are labour
invalids, 255 are persons with combined disabil-
ities, 134 are persons with hearing impairment,
119 are persons with vision impairment, 67 are
military invalids, 37 have speech impairment,
12 are war invalids, 72 are persons with other
categorised types of disability, and 23 persons
are with other uncategorised types of disability
(2010-2018 National Strategy on Equal Right of
Persons with Disabilities, p. 9)
Surveys into the area point to fact that the per-
sons with mental disability, followed by the per-
sons with physical disability, are discriminated
the most in employment, owing to the numer-
ous prejudices against them. For example, it was
noted that, although people for the most part do
not mind cooperating with a disabled person in
the work place (72.3%), nevertheless, 29.8% of
the respondents would not accept a disabled per-
son as their superior (Simoska, Gaber, Jovevska,
Atanasov, Babunski, 2008, p. 35 and pp. 50-51).
This is also confrmed by other surveys, which
indicate that the persons with disability are not
accepted as employed on equal basis with oth-
ers (NGO Ergos, Skopje, 2003), a phenomenon
manifested with the receiving of smaller pay for
the same work, lesser chances for promotion and
harassment in the work place. A total of 25.9%
of the respondents with physical disability be-
lieve that they have been discriminated in the
work place, with the people in the age group 35-
49 considering themselves as discriminated most
often. Another hot issue ensuing from this sur-
vey is its problematising the multiple discrim-
ination of women with physical discrimination
and of older persons (aged above 50) with phys-
ical disability (Jovanova, Dimitrijoska, Tomovs-
ki, Ignjatovik, 2009).
Viewed from both legal and practical percpec-
tive, of special interest for consideration is the
issue of sheltered facilities. Data acquired from
the State Statistical Offce show that as of 31 De-
cember 2010 there are 268 employment services
employing a total of 2.394 persons with disabili-
ty, most of whom have been employed in Skopje
(416), Veles (337) and Bitola (301) (State Sta-
tistical Offce, No. 2.4.11.16, 2011, p. 43). Sur-
veys conducted, especially in regard to persons
with physical disability, showed that 55.8% of
all employees with physical disability were em-
ployed in the sheltered facilities, most of which
pertain to the provision of services. The survey
indicated that women with physical disability
are most often employed in the sheltered facil-
ities (49.1%), and then the open labour market
(27.8%), while physically disabled men are
most often employed in the open labour market
(33.3%), and then the sheltered facilities (30%).
Employment in the public sector is rather low,
negligible even, and measures 2.6% (Jovanova,
Dimitrijoska, Tomovski, Ignjatovik, 2009).
grounds of mental and
physical disability
From the statistics of the Commission for
Protection against Discrimination, it can be de-
termined that in 2011, a total of 63 submissions
were fled, of which only 6, that is, 9.52% per-
tain to alleged discrimination on the grounds of
mental and physical discrimination, whereas the
most frequent area for discrimination was work
and labour relations measuring 47.62% of all
submissions fled (2011 CPD Annual Report,
2012, pp. 9-11). In addition, in 2012, the Com-
mission received a total of 76 cases, of which
In the submission fled to the Commission
the claimant stated that he/she did not
receive a pay ensuing from the labour
relation, based on mental and physical
disability. Pursuant to article 27 paragraph
1 of the Law, the CPD, pending reply,
forwarded the submission to the person
against whom it was fled. The Commission
considered the reply from the party of the
potential discriminator, who claimed that
the bank account of the club was blocked
for more than a year, for which they were
unable to pay the person. Upon determining
the state of affairs, the Commission
identifed violation of the labour relations
rights, but not discrimination grounded on
mental and physical disability in the case
mentioned (CPD, 2012 Annual Report, p.
22).
A physically disabled person fled a
submission to the Commission claiming
that article 1 of the Law on Employment of
Persons with Disability is not in line with
article 35 paragraph 3 of the Constitution
of RM, since it does not encompass all
categories of persons with disability,
especially those who perform their
occupation or profession independently
(lawyers, doctors, notaries). Namely,
according to the legal framework thus set
up, the persons with mental and physical
disability cannot exercise the privileges
provided by the state for employment of
persons with disabilities, and therefore,
they are put in an unfavourable position
relative to the other persons with disability.
In this case, the Commission stated that
it had no competence to act upon the
request. At the same time, the Commission
recommended that the claimant, in
cooperation with the Commission for
Protection against Discrimination to
initiate an authentic reading of article 1 of
the Law on Employment of Persons with
Disability. Thereby, it will be determined
whether article 1 also covers the category of
natural persons independently performing
an occupation, since the article itself is
rather vague because it mentions persons
independently performing activity at a sole
proprietor, employer, whereas the Law on
Trade Companies does not recognise such
a category. A sole proprietor is a natural
person who performs a commercial activity
as an occupation, and it is unclear how
a person independently performing an
activity can do so in the capacity of a sole
proprietor (CPD, 2012 Annual Report, p.
22).
60 61
eight, that is 10.53%, concerned alleged discrim-
ination on the grounds of mental and physical
discrimination, and the area with the greatest
prominence of discrimination was 36.84% of
all submissions fled. The Commission, thus,
underlines that [t]he discrimination of persons
with mental and physical disability is existent in
all areas of social and private life, whereas it is
most expressed in the area of work and labour
relations. Their position can best be seen taking
into consideration the high unemployment rate,
the low education, poverty, the institutionalisa-
tion risk, as well as the restricted access to public
facilities and services. (2012 CPD Annual Re-
port, 2013, p. 22)
From the total number of submissions to the
Commission for Protection against Discrimina-
tion during 2012 on the grounds of mental and
physical disability, the Commission acted upon
four. Pursuant to article 28 of the LPPD, the
Commission, having determined the physical
condition, in one case concluded that there was
no discrimination. Pursuant to article 26 of the
Law, the Commission did not act upon three sub-
missions, that is, on two submissions the Com-
mission found no basis for discrimination, while
on one submission it determined that it had no
competence to act (2012 CPD Annual Report,
2013, p. 22).
Along with these cases of discrimination,
discrimination-related submissions were fled
on the grounds of physical and mental disabil-
ity based on the legal provisions, for which the
Commission stated that it had no competence to
act.
According to the data from the Ombudsmans
2012 Annual Report, 7.04% of the total sub-
missions pertain to the labour relations rights,
whereas most of them refer to employment, de-
termination of employment status, transforma-
tion of labour relations, and to allocation. On the
other hand, only 0.74% of all submissions con-
cern non-discrimination, none of which relates
to an alleged discrimination on the grounds of
mental and physical discrimination.
Based on the data from the analysis conduct-
ed by the Ombudsman, it can be concluded that
there is a cyclic inclusion of mentally or phys-
ically disabled persons in the labour market.
Namely, their number in 2007 was 636, most of
whom were intellectually disabled persons, in
2008 the number of employed persons was 691,
whereas persons with intellectual disability were
once again most prominent and measured 40%
of the overall number. The number of persons
in 2009 who established labour relations rose
to 769, whereas in 2010 the number of persons
on established labour relations dropped to 504,
only to rise in 2011 to 604 (Situation and chal-
lenges Analysis of the employment of persons
with disability, Ombudsman, 2012, p. 24-28).
The Ombudsman thereby concluded that the per-
sons with disability are employed only in shel-
tered facilities, that they are underrepresented
in the public sector, and that there is no proper
communication between the employer and the
person with disability for the purpose of accom-
modation to the work place. At the same time,
the Ombudsman concluded that there is a need
to promote the process of categorising the dis-
abled persons and that the determination of the
working position is solely a matter of agreement
between the person and the employer, and not
the Commission of the MoLSP determining the
working capability (Situation and challenges
Analysis of the employment of persons with dis-
ability, 2012, pp. 24-28).
On the basis of the situation regarding persons
with mental and physical disability in the labour
market, where 150 persons with different kinds
of disabilities were interviewed, it can be de-
duced that the disabled persons roam the states
labyrinths once they are supposed to enter the
labour market. On the one hand, this stems from
the insuffcient assessment of their capabilities,
and on the other hand, it is caused by the unrea-
sonable accommodation to the work place, the
lack of working assistance, but also their treat-
ment in the work place, the misuse of their la-
bour, as well as the participation or membership
to a trade union (Analysis of the employment of
persons with disability, 2013). According to the
data analysis, persons with disabilities tend to
enter labour relations with no knowledge of their
rights, whereas up to 43% of the respondents
claimed ignorance of their labour relations rights
and, in addition, 16% were not sure whether they
are familiar with those rights. From those aware
of their own rights, when asked if the employer
respected their rights, 58% gave a negative re-
sponse (Analysis of the employment of persons
with disability, 2013).
A major percentage, that is, 68% believe that
their superiors treated them differently for their
disability. From the total number of respon-
dents, 18% stated that they did not perform the
activities for which they had been hired, 10%
believed that they are discriminated, 22% were
of the opinion that they were treated differently
than the other employees, 15% claimed that they
are neither paid nor recorded as employees, 15%
said they worked overtime, only 4% complained
about the working conditions and equipment,
4% noted that they live at a great distance from
their work place, 3% stated that they had no un-
derstanding with the employers concerning their
condition, and 9% claimed that they were not
certain, but felt that they are not like the others
(Analysis of the employment of persons with
disability, 2013).
62 63
65 64
INSTITUTIONAL
FRAMEWORK
I
nstitutions of importance to the pro-
tection against discrimination on the
grounds of ethnicity, gender, age, and
mental and physical disability in the
feld of employment and labour rela-
tions, and promotion of the equality principle are
as follows: the Commission for Protection against
Discrimination (CPD), the Ombudsman, the State
Labour Inspectorate and the legal Representative
conducting procedures to establish unequal treat-
ment of women and men.
1.
COMMISSION FOR PRO-
TECTION AGAINST DIS-
CRIMINATION
The Commission for Protection against Dis-
crimination is an equality-related body the goal of
which is to combat discrimination and to provide
for the right to equality. CPD is conceptualised
as an independent body pursuant to the Law on
Prevention and Protection against Discrimination,
with competences covering both the public and the
private sector, unlike the Ombudsman.
According to article 24 of this Law, the CPD has
extensive competencies aimed at promoting equal-
ity and preventing discrimination, inter alia, on the
grounds of disability, which can be grouped into
the following four groups:
provision of legal protection and assistance to
the alleged victims of discrimination based on all
four grounds analysed here (through the resolution
of individual cases and giving opinion and rec-
ommendations on concrete discrimination-related
cases);
enforcement of promotional, educational and
advisory competencies (awareness-raising about
discrimination, inter alia, based on ethnicity,
gender, age, and mental and physical disability,
and the protection mechanisms at disposal, giv-
ing opinions about law proposals relevant to the
protection against discrimination on the grounds
mentioned, giving recommendations and initiating
amendments to the regulations for the implemen-
tation and promotion of the protection against dis-
crimination);
investigative, analytical and reporting compe-
tencies (gathering statistical data and forming data
bases, conducting studies and surveys, reporting);
and
capacity building and cooperation with oth-
er bodies (cooperation with the units of the local
self-government and the central authorities, pro-
vision of discrimination-related training, coop-
eration with the proper national bodies and other
countries and with international organisations in
the area of protection against discrimination, inter
alia, on the grounds of ethnicity, gender, and men-
tal and physical disability).
Pursuant to the Law, every person who be-
lieves to be a victim of discrimination is entitled
to a submission to the CPD, and upon determining
the state of affairs the Commission will give an
opinion about the alleged discrimination no longer
than 90 days from the day of fling the submission,
whereas it will inform both the claimant and the
person against whom the submission has been
fled. If the CPD identifes discrimination, it will
recommend means of erasing it. The person to
whom the submission is addressed is obliged,
in a period of 30 days upon receiving the sub-
mission, to act upon it and to remove any vio-
lation of the right. At the same time, the person
is obliged to inform the Commission about the
removal of the violation in question. And if the
discriminating person does not act upon the rec-
ommendation within the period indicated, that
is, fails to rectify the violation of the right, CPD
may initiate legal proceedings before the rele-
vant body to determine the persons responsibil-
ity (Poposka, 2013, pp. 41-42).
From the CPD statistics one may notice that
this body received a total of 63 cases in 2011,
most of which14 or 22.22%relate to alleged
discrimination on the grounds of ethnicity, 6 or
9.52% to alleged discrimination on the grounds
of mental and physical disability, 5 or 7.94% to
alleged discrimination on the ground of sex, and
fnally, only 4 or 6.35% relate to alleged age-
based discrimination. The most frequent area
showing discrimination is employment and la-
bour relations with 47.62% of the overall sub-
missions (2011 CPD Annual Report, 2012, pp.
9-11).
Moreover, in 2012 the CPD received a total of
63 cases, most of which16 or 21.05%relate
to alleged discrimination on the grounds of eth-
nicity, then 8 or 10.53% to alleged discrimina-
tion on the grounds of mental and physical dis-
ability, 5 or 6.58% to alleged discrimination on
the ground of sex, and fnally, only 3 or 3.95%
relate to alleged age-based discrimination. The
most frequent area showing discrimination once
again is employment and labour relations with
36.84% of the overall submissions. The CPD
thereby points out that [m]ost often the sub-
missions about ethnicity in employment and
labour relations concern legal persons, employ-
ers, state institutions and, in rare cases, natural
persons, too (2012 CPD Annual Report, 2013,
p. 19). It is also stated that [t]he discrimination
of persons with mental and physical disability
is existent in all areas of social and private life,
whereas it is most expressed in the area of work
and labour relations. Their position can best be
seen taking into consideration the high unem-
ployment rate, the low education, poverty, the
institutionalisation risk, as well as the restricted
access to public facilities and services (2012
CPD Annual Report, 2013, p. 22).
2.
OMBUDSMAN
The Constitution (article 77 paragraph 2) and
the Law on the Ombudsman (article 2) stipulate
that: [t]he Ombudsman shall be a body of the
Republic of Macedonia that shall protect the con-
stitutional and legal rights of citizens and all oth-
er persons when these are infringed acts, actions
and omissions by the state administration bodies
and by other bodies and organisations that have
public authority, and who shall undertake actions
and measures for protection of the principle of
non-discrimination and adequate and equitable
representation of community members in state
administration bodies, the local-self government
units, and the public institutions and agencies.
For these reasons, besides the protection of the
right to work, the Ombudsman may also pro-
tect persons bearing a protection characteristics
which is subject of this analysis (given ethnici-
ty, gender, age or mental and physical disabili-
ty) and protect them from discrimination on the
grounds indicated in employment and labour re-
lations in the public sector.
In this respect, the Ombudsman as an indepen-
dent body provides legal protection to alleged
victims of discrimination based on the above
mentioned grounds or on the right to work, by
receiving and processing individual submissions
from these groups of citizens. The Ombudsman
may initiate a procedure on own initiative (ar-
IV
67 66
ticle 13). The Ombudsman decides upon every
submission and gives a legal and non-binding
opinion concerning the means to rectify certain
violations. On own initiative, he/she can conduct
visits and insight into the bodies concerned (arti-
cle 30 paragraph 1).
In line with article 45 of the law and in the
course of a more effcient and more successful
protection of the constitutional and legal rights
of citizens in the area of labour relations, the
Ombudsman may establish and organise depart-
ments. For that purpose, besides the casework
done in the area of labour relations, a special
Department for protection against discrimina-
tion has been established, providing proper legal
representation within the eponymous institution.
This can be illustrated through a few statisti-
cal data from the Ombudsmans Annual Report
concerning protection of the rights in labour
relations, and non-discrimination, in gener-
al. Namely, in 2011 9.68% of the total number
of submissions fall under the labour relations
rights, 33.25% from which pertain to employ-
ment, allocation and take-in procedures, 25.97%
to the procedure for payment of pays and other
compensations, 11.41% pertain to the employ-
ment termination procedure, 6.55% to proce-
dures upon complaints and objections, 5.10% to
the procedure before the Employment Service
Agency, 2.67% to the disciplinary procedure to-
ward an employee, and 15.05% to the remaining.
In monitoring the developments regarding the
exercise of these rights, the Ombudsman detects
a continuing trend of the self-initiated and un-
professional acts of employers toward workers,
who suffer adverse consequences only to pre-
serve their fnancial means (2011 Annual Report,
2012, pp. 33-35 and pp. 61-65). On the other
hand, only 0.99% of all submissions put forward
to the Ombudsman regard non-discrimination,
none of which concerns multiple discrimination
(Poposka, 2012, p. 294).
The situation in 2012 is similar for the most
part. Namely, 7.04% of the total submissions
pertain to the labour relations rights, whereas
most of them refer to employment, determina-
tion of employment status, transformation of
labour relations, and to allocation. On the other
hand, only 0.74% of all submissions to the Om-
budsman concern non-discrimination, none of
which relates to multiple discrimination. Most
submissions concern discrimination in labour
relations, whereas the most frequent grounds,
except for the ethnicity, are not indicated. The
Ombudsman concludes that citizens ate unable
to recognise the forms of discriminations and be-
lieves that more detailed surveys should be done
in the future, for the purpose of establishing the
cause for the occurrence in question, and under-
taking measures and activities (2012 Annual Re-
port, 2013, pp. 37-39 and pp. 61-62).
Further in relevance to these grounds, the Om-
budsman in 2012 conducted a survey about the
exercise of the right to employment of persons
with special needs, showing that [a]lthough
there is a solid framework in terms of laws and
by-laws, what lack is its consistent and full im-
plementation. These persons in the practice face
stereotypes and prejudices in exercising their
right to employment, whereas both employers
and job seekers are ignorant of the rights, ob-
ligations and responsibilities ensuing from the
labour relations. Dissatisfaction on behalf of the
monitoring bodies was also detected, owing to
the fact that the disabled persons are being dis-
couraged by employers to report infringements,
and the dissatisfaction also relates to the long
decision-making procedures of the Commission
giving opinion in case of both frst-time employ-
ment and change of work position. Among oth-
er things, this survey showed that the competent
bodies lack full data about the right to work and
employment of disabled persons on all grounds.
Also evident is the lack of a single record of the
number of able-bodied persons with disabilities,
of the number of persons where their labour re-
lation ceased according to the law, but also of
the number of cases of employment termination
against the law. Also, the communication among
the employer, the disabled person and the state
body/institution is hampered, depending on the
facial development impairments, which results
in a slower and incomplete socialisation of the
person with disability. There is also the need to
establish an administration employing these per-
sons (2012 Annual Report, 2013, pp. 79-81).
What hinders the Ombudsman in the area of
protection of the right to work and protection
against discrimination, inter alia, on the grounds
of ethnicity, gender, age or mental and physical
disability are competences solely in the public,
and not the private sector. This is especially
problematic when dealing with the grounds of
mental and physical disability, since disabled
persons are most often employed in the sheltered
facilities, which fall under the private sector, and
so, it can be concluded that a large area remains
uncovered by this protection mechanisms.
3.
LEGAL REPRESENTA-
TIVE CONDUCTING
PROCEDURES TO ES-
TABLISH UNEQUAL
TREATMENT OF WOM-
EN AND MEN
The implementation of the Law on Equal
Opportunities of Women and Men, through the
Unit for Promotion of Gender Equality within
the Department for Equal Opportunities at the
Ministry of Labour and Social Policy, has fore-
seen the employment of the legal representa-
tive conducting procedures to establish unequal
treatment of women and men. Pursuant to the
Law, the following grounds have been deemed
discrimination: inter alia gender, nationality,
age and disability (article 3 paragraph 6), pro-
viding for possible multiple discrimination. The
legal representative conducts a procedure upon
a submission put forward and prepares a written
opinion with recommendations for overcoming
the situation (article 21-32).
As of his appointment, the legal representative
competent to conduct procedures to establish un-
equal treatment of women and men has received
only 7 cases, whereas in 4 the Representative did
not establish violation of the right on the ground
of sex (Analysis of the degree of implementa-
tion of the Law on Equal Opportunities of Wom-
en and Men, 2011, p. 21). Only one case refers
to alleged discrimination on the ground of sex
combined with ethnicity for the claimant. The
Representative did not establish discrimination
in any of the cases.
4.
STATE LABOUR IN-
SPECTORATE
The State Labour Inspectorate is a body with-
in the Ministry of Labour and Social Policy. Ac-
cording to the rulebook on systematisation of the
Ministry of Labour and Social Policy there are
four departments covering the entire country:
Department for Labour Relations, Department
Security and Health in Work, Department for
Normative Action for Security and Health in
Work, and Department for Coordination, Train-
ing and Administrative Execution, whereas de-
partments consist of fve labour relations units.
There are 99 labour inspectors allocated in 30
areas, 63 of whom are related to the area of la-
bour relations.
The State Labour Inspectorate performs con-
trol, inter alia, under the following regulations:
Law on Labour Relations, Law on Labour In-
spection, and Law on Employment of Persons
with Disability1. In line with the competences
laid down by the Law on Labour Inspection and
the Law on Labour Relations, the State Labour
Inspectorate performs control of the implemen-
tation of the laws and other regulations as re-
68 69
gards labour relations, employment, collective
and work agreements regulating the rights, obli-
gations and responsibilities of the worker or em-
ployer in the labour relations. This competence
is realised by conducting regular supervision at
the employers, control supervisions and acting
upon written or oral request of persons, as well
as contacting the call centre on matters regarding
the protection of the labour relations rights.
As an illustration, data acquired from the la-
bour inspectors in the regional units and inspec-
tors from the State Labour Inspectorate in 2011,
a total of 31,146 supervisions were carried out,
28,748 of which were regular and 2,398 were
control supervisions. In addition, the inspec-
tors intervened upon 1,999 written requests of
persons regarding the protection of their labour
relations rights. Also, in 2011 a total of 1,184
reports were fled through the call centre or the
website of the State Labour Inspectorate, 101 of
which were from a known claimant, and 1,083
were anonymous. The requests for the protection
of labour relations rights refer to the following:
308 for establishment of labour relations, 459 for
termination of labour relations, 112 for working
overtime, 53 for vacations and leaves, 553 for
pays, contributions and compensations, 5 for re-
dundancy, and 466 for the remaining cases (2011
Report on the work of the State Labour Inspec-
torate, 2012, pp. 1-6).
71 70
CONCLUSIONS AND
RECOMMENDATIONS
V
CONCLUSIONS
The protection of the individuals with
a certain mental and physical disability,
ethnic origin, sex and age in the area of
employment and labor relations, includ-
ing the protection against discrimination
on these discriminatory grounds is rela-
tively solid. Nevertheless, the legislation
contains inconsistencies because of the
obvious contradictions therein, certain
terms are not well adjusted and the con-
cepts of discrimination are wrongly set
out, such as the defnitions and the excep-
tions to discrimination in the Law on Pre-
vention and Protection against Discrim-
ination. Moreover, the lack of suffcient
case law and quasi-case law signifcantly
hinders ones ability to explain how these
concepts (legal institutes) stipulated in
the legislation should be applied.
There is a legal gap with regard to the
protection of the women that have signed
employment contracts for a defnite peri-
od of time.
The national policies do not provide for
a uniform and strategic approach when
it comes to the persons with mental and
physical disability, especially with regard
to the employment thereof.
The principle of adequate and equitable
representation continues to be imple-
mented, but the representation is not at
the required level, especially with regard
to managerial posts and the smaller ethnic
communities.
Ethnic discrimination is the most com-
monly perceived form of discrimination
by the citizens. In addition, the cases re-
ported before the Commission for Pro-
tection against Discrimination and the
Ombudsman are mostly related to dis-
crimination on grounds of ethnic origin,
nd the least on grounds of age and sex.
The competent authorities do not keep
separate databases about discrimination
on grounds of sex, and there is lack of
analyses and surveys about the presence
of discrimination on this ground in the
private sector.
The employment of persons with mental
and physical disability in shelter compa-
nies should be a transitory solution to-
ward their full employment on the open
labor market; it should not derogate from
this second possibility or from the possi-
bility to become employed in the public
sector.
RECOMENDATIONS
The availability of legislation does not
achieve the desired goal by itself, which
is equality of opportunities and equality
of the end result for the persons with a
certain mental and physical disability,
ethnicity, age and sex. More specifcally,
in order for the legislation to produce the
desired effect for these groups of citizens,
it should be accompanied by additional
measures such as, for example, public
awareness raising activities, capacity
building in the responsible institutions
(Commission for Protection against Dis-
crimination, Ombudsman, State Labor
Inspectorate), maintaining databases dis-
sagregated by disability, ethnicity, age
and sex, and conducting detailed analysis
of the legislation and policies followed by
making necessary improvements therein.
Continue with the application of the prin-
ciple of adequate and equitable repre-
sentation, with a special emphasis on the
managerial functions and the situation
with the smaller communities.
Explicit prohibition in the labor legisla-
tion as well as in the anti discrimination
legislation of discriminatory announce-
ments or statements on grounds of mental
and physical disability, ethnic origin and
age.
Provide that instructions to discriminate
shall constitute a specifc form of dis-
crimination in the Labor Relations Law.
The legal institute of reasonable accom-
modation is a fairly new concept in our
legal system, hence the need for precise
provisions about it both in the labor leg-
islation and in the anti discrimination leg-
islation.
The exceptions to the prohibition of
discrimination on grounds of age in the
LPPD should be re-defned; similarly,
one should refect on the need to remove
some exception(s) or introduce other ex-
ception(s) in line with the relevant EU
Directive.
Refne the Labor Relations Law in terms
of introducing provisions about protect-
ing pregnant women that have signed an
employment contract for a defnite peri-
od of time, and fnetuning the provision
for cases when the employer knew about
the pregnancy but nevertheless decided
to cancel the employment contract of a
pregnant worker.
Re-examine the criterion general health
ability as one of the requirements for
employment that restricts the access for
the persons with disability to jobs in the
civil service, the judiciary and the Bar
profession, and make this criterion ful-
ly individualized in a number of laws in
conformity with Article 25 of the Labor
Relations Law, i.e. put this requirement in
the context of the very occupation/func-
tion (post).
Create possibilities for re-examination
of the incentives provided for in Article
4 of the Law on Employment of Persons
with Disabilities by the courts on a case
by case basis in order to ascertain if they
are meaningful, especially since there is
serious concern about possible abuses by
the employers.
Amend the provision in Article 4- Para-
graph 5 of the Law on Employment of
Persons with Disabilities which requires
expert evidence (fndings) and opinion
from the relevant Commission under
the Ministry of Labor and Social Policy
about the ability of a person with mental
and physical disability to carry out man-
agerial duties because it is discriminatory
and needs to be abandoned.
The national strategies dealing with these
aspects need to be implemented in order
to improve the situation with discrimina-
tion on the grounds of age and mental and
physical disability in the labor feld.
Raise the public awareness among pri-
vate sector employers about the discrim-
ination of women on the grounds of their
marital status, family status, age and
pregnancy status.
73 72
METHODOLOGY
APPENDIX
A
s part of the project Support
to the further development of
an effective equality infra-
structure supported by the
OSCE Mission to Skopje and
the project From legislation to practice im-
plemented under the scope of the Progress Pro-
gramme of the European Union, the Ministry of
Labour and Social Policy in the period March
October 2013, conducted a legal analysis of
the discriminatory practices in the area of em-
ployment and labour relations on the grounds of
ethnicity, age, gender, and mental and physical
disability. The analysis was carried out by a team
of four experts, Zaneta Poposka, PhD, Bekim
Kadriu, PhD, Lenche Kocevska and Elena Ko-
choska. The authors were further supported by
an operational team from the Ministry of Labour
and Social Policy, Commission for Protection
against Discrimination, and the OSCE Mission
to Skopje.
The methodology was aimed at providing an
overview of the tools used in acquiring and pro-
cessing the necessary data concerning the prepa-
ration of the analysis, the approach to drafting
the analysis text, as well as the limitations of the
methodology applied.
As stated in the text above, the objective of the
analysis was to clarify the discriminatory practic-
es on the four bases of discrimination contained
in the Law on Prevention and Protection against
Discrimination (2010) in the area of employment
and labour relations. Thus, this determines the
main subject matter of the analysis. Still, for the
purpose of better comprehending the legislation,
besides the domestic laws and practice, and the
ratifed international treaties, the analysis takes
into account all relevant international treaties,
the practice of the international courts and the
human rights bodies, in addition to the relevant
literature. Moreover, the analysis delved into the
state of affairs, that is, it mirrors the discrimina-
tory practices in this area as regards each ground
separately, in order to give recommendations for
its update.
The preparation of the text is limited in rela-
tion to its length, owing to both the number of
discriminatory grounds contained in the Law of
Prevention and Protection against Discrimina-
tion analysed further in the text, and to its pur-
pose to serve as a guideline to the state institu-
tions concerning amendments to the legislation
and updating the practice (manly of the Ministry
of Labour and Social Policy, the Commission for
Protection against Discrimination and the Om-
budsman).
The goal of the analysis is to aid the mapping
of the discriminatory practices on four grounds
of discrimination in the area of employment and
labour relations. To this end, exploratory re-
search was used to gather and analyse the needed
data for preparing the text.
For the implementation of the analysis, a
methodology was used combining the fol-
lowing: review of the literature/documents,
semi-structured interviews and case studies. The
implementation was overseen by the Ministry of
Labour and Social Policy, Commission for Pro-
tection against Discrimination, and the OSCE
Mission to Skopje.
ACTIVITIES
a) Review of the literature /
documents
During the initial stage of the research, the ex-
perts, supported by the operational team of the
Ministry of Labour and Social Policy and the
OSCE Mission to Skopje, reviewed the available
literature related to protection against discrimi-
nation in the area of employment and labour re-
lations on the grounds of ethnicity, age, gender,
and mental and physical disability. This entailed
analysis of the previous experiences on the sub-
ject, as well as databases from the relevant insti-
tutions, like the Ministry of Labour and Social
Policy, the Ombudsman, and the Commission
for Protection against Discrimination. The ex-
isting literature and data taken into account were
as follows: legal documents (domestic laws, pol-
icies directly or indirectly pertaining to the four
groups of persons, international agreements and
relevant travaux prparatoires); the practice of
courts and bodies (domestic courts, Commission
for Protection against Discrimination, Ombuds-
man, legal representative conducting procedures
to establish unequal treatment of women and
men, international courts and bodies); and aca-
demic literature (domestic and foreign papers).
In preparing the review consulted were also civil
organisations following the matter of protection
against discrimination in employment and la-
bour relations, and other relevant stakeholders.
The literature review was carried out in the pe-
riod April July 2013.
b) Interviews of relevant
stakeholders
Having regard to the low general awareness
of citizens concerning their right in general, and
especially concerning discrimination, the dis-
criminatory practices in employment and labour
relations are rarely discussed, whereas the prac-
tice of reporting cases of mistreatment by indi-
viduals of different groups is quite uncommon.
On the other hand, most citizens have an opin-
ion on this issue. Therefore, in addition to the
literature/document review, interviews were also
conducted with the relevant stakeholders and ex-
perts regarding their perception and assessment
of the legal and institutional framework, as well
as the situation in practice about this exception-
ally important issue. Semi-structured interviews
were designed with the assistance of a guide for
conducting interviews. The interviews encom-
passed several sectors of society, that is, inter-
views were conducted with key fgures from: the
Assembly, Government, Constitutional Court,
Ombudsman, Commission for Protection against
Discrimination, Legal representative conducting
procedures to establish unequal treatment of
women and men, in line with the needs ensuing
from the legal analysis to clarify a part of the
fndings.
Data gathered from the existing literature and
those collected through semi-structured inter-
views were processed by means of qualitative
content analysis. This approach enabled a fexi-
ble, but not very detailed general subject, which
was descriptively elaborated, thus allowing both
preservation of the context and the meaning of
the text as seen from the authors perspective,
and a hermeneutic analysis.
The interviews with the relevant stakeholders
were done in the period July August 2013.
c) Case studies
The case studies offer qualitative complemen-
tation of the previous two methods and allowed
the implementation of a practical analysis on
concrete issues or aspects. This part of the anal-
ysis saw the review of already documented cases
from the media, the practices of the civil organ-
isations, the Commission for Protection against
Discrimination and the Ombudsman. Experts
picked the cases to be considered.
The case studies were being considered in
September 2013.
d) Analysis of the data and
preparation of a draft legal
report
Data acquired from the available documenta-
tion, the interviews conducted and other activi-
ties were analysed and included within the draft
of this analysis. The primary fndings and con-
clusions were considered at the meeting on 25
September 2013 in the function of a target group,
followed by the preparation of the analysis.
The analysis also contained a summary, in-
tended for the policy-makers and general public,
presenting the main fndings, achievements and
faws of the legal and the institutional frame-
work, the situation analysis on each ground sep-
arately, as well as the recommendations to make
improvements.
e) Monitoring of the pro-
cess of preparing the anal-
ysis
During the project period four meetings were
organised among the Ministry of Labour and So-
cial Policy, Commission for Protection against
Discrimination, the OSCE Mission to Skopje
and the team of experts. The goal of the frst
meeting, held on 23 April 2013, was to check the
content, methodology, and time frame, and to
provide direction for some of them. The second
meeting took place after the data collection on
17 July 2013 in order to present the initial fnd-
ings and to agree on the means of conducting in-
terviews with the relevant stakeholder. The third
meeting was held upon the implementation of all
activities on 25 September 2013. The goal of this
meeting was to present the fndings of the analy-
sis, to comment and discuss the conclusions, and
to help formulate the recommendation. The fnal
meeting took place on 23 October 2013 for the
purpose of fnalising the analysis.
74
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