Racism Report 2003 - Zara

More documents

Recommendations

Info

Page 60 Focus Issue: Racism and the Law Racism Report 2003o Directive 2002/73/EG of the European Parliament and Council of September 23, 2002; a proposal for amendingDirective 76/207/EEC on the implementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditions.The European Court of Justice specified in the case of Becker (1982) as well as in other judgements as well as othercases the pre-requisites under which such subsidiary or secondary norms take immediate effect, i.e.• that secondary legislation (directives) may take direct effect under preconditions analogous to the direct effectnotion of primary legislation; and• that the term for implementation and enforcement conceded to the member states pursuant to the Act ofSubsidiarity (i.e. Secondary Legislation) must have passed.The following is a description of the Directives‘ important provisions for combating racism:The deadline for implementation of Directive 2000/43 on implementing the principle of equal treatment betweenpersons irrespective of racial or ethnic origin ended on July 19, 2003. Hence, the provisions of the Directive havesince either become immediately applicable (legally binding) or, in the event of non-implementation, the state isnow held liable for providing legal protection in individual cases of discrimination. It applies to all persons in boththe public and the private sector with regard to the access to employed and self-employed activities, vocationalguidance, employment and working conditions, membership of and involvement in an organisation of workers oremployers, social protection, social benefits, education and access to and supply of goods and services, includinghousing. Member States ought to ensure that judicial and/or administrative procedures are available to all personswho consider themselves wronged by failure to apply the principle of equal treatment. Pursuant to the Directive, this„Defence of rights“ is considered a fundamental principle applicable to all types of discrimination.Directive 2000/78 intends to combat discrimination in employment on the grounds of religion, belief, disability,age or sexual orientation. The protection granted is similar, it does, however, not include social protection, socialbenefits, education and access to and supply of goods and services. The deadline for implementation of the Directivewas December 2, 2003.III. International Human Rights: PrinciplesAustria is a signatory party to a series of international legal instruments banning discrimination on the grounds ofracial, ethnic and national origin. The European Convention on Human Rights (ECHR) which enjoys constitutionalstanding was already mentioned under the Fundamental Constitutional Principles.CERD is another important international human rights tool for combating discrimination. In 1965 the UN GeneralAssembly adopted the „International Convention on the Elimination of All Forms of Racial Discrimination“ (CERD).This Convention lists the measures that must be taken by signatory states in order to combat discrimination.The Convention entered into effect in 1969 and was ratified by the Austrian government in 1972. As mentionedabove, in 2002 Austria adopted the jurisdiction of the CERD „monitoring body“ for individual complaints („communications“).In addition, Austria is a signatory party to the following instruments banning discrimination on the grounds ofracial, ethnic or national origin:• International Covenant on Civil and Political Rights, Article 2, para. 1, BGBl. Nr. 591/1978,• International Covenant on Economic, Social and Cultural Rights, Art. 2, para. 2, BGBl. Nr. 297/1994,• Convention on the Rights of the Child, Art. 2, para. 1, BGBl. Nr. 748/1993,• ILO Convention No. 111 on Discrimination in Employment and Occupation, Art. 2, BGBl. Nr. 111/1973IV. Perspectives: The New (Draft) Equal Treatment ActThe obligation to implement the EU Directives 2000/43 and 2000/78 would have been a good opportunity to preparea comprehensive anti-discrimination law. Unfortunately, however, the Austrian government presented a minimaldraft proposal only.This draft proposal fails to cover a number of cases (e.g. discrimination on the grounds of nationality althoughthis is prohibited by other Austrian legal provisions, viz Article IX, EGVG); moreover, this draft changes very little incases of discrimination within the private sphere in spite of the fact that the ban on discrimination clearly applies toprivate agents as well. This is nothing new (and recognised in CERD), yet the legal consequences provided by Austrianlaw are not as far reaching as they ought to be.The path chosen by the Federal Government for implementing the two Directives - so far in the form of a draftproposal for consultation purposes - is a reform of the Equal Treatment Act, a law which was initially drawn up tocombat the discrimination of women. The list of reasons defining the offence of discrimination raised considerablecriticism since the draft fails to include disabled persons. The Directives themselves were also criticised as for instance,they do not include discrimination on the grounds of nationality (although in some reports the legal provisions ofthe Committee on the Elimination of Racist Discrimination recognised this as racial discrimination).
Racism Report 2003 Focus Issue: Racism and the Law Page 61Although the Directives recommend enforcement by way of judicial and/or administrative procedures, the draftfurther modifies the competence of the Equal Treatment Commission (currently applicable to women/men only) byseparately regulating the institutions (extended Equal Treatment Commission and Equal Treatment Ombuds Body)and the procedures. Here it must be recalled that the Commission is empowered to produce expertises only and thatthe procedures are not binding. The legal provisions laid out in the draft are of a nature pertaining primarily to CivilLaw and particularly to Labour Law.The following new „remedies“ are included in this draft for an Equal Treatment Act (GlBG); it needs to be pointedout that the following provisions are to be applied to direct and indirect discrimination:I) Classified advertisements: The draft includes a punitive provision applicable to discriminating job advertisements(on the grounds of „race“, ethnic origin, religion, belief, age or sexual orientation). (§ 18 Equal Treatment Act,GlBG)II) Legal consequences (sanctions) for non-compliance with the equal treatment regulation due to discrimination onthe grounds of gender, race or ethnic origin, religion or belief, age or sexual orientation:a) Compensation for the economic loss incurred if refusal of employment was based on a violation of the equaltreatment regulation (§ 20 para. 1 GlBG).b) Payment of differential amount and of compensation for personal disadvantage suffered due to non-compliancewith the equal treatment regulation by paying the discriminated employee less than a non-discriminatedemployee for work considered of equal value (§ 20 para. 2 GlBG).c) Payment of differential amount and of compensation for personal disadvantage suffered due to discriminatorygranting of voluntary social benefits (§ 20 para. 3 GlBG).d) Entitlement to access to vocational training and advanced vocational training or to compensation for the economicloss as well as to compensation for the personal disadvantage suffered due to discrimination with regardto vocational training and advanced vocational training as well as retraining (§ 20 para. 4 GlBG).e) Compensation for the economic loss as well as compensation for personal disadvantage suffered due to discriminationwith regard to the professional hierarchy, in particular with regard to promotion (§ 20 para. 5 GlBG).f) Compensation for the economic loss as well as compensation for personal disadvantage suffered due to discriminationwith regard to other working conditions (§ 20 para. 6 GlBG).g) Dismissals can be challenged in court provided they are based on discrimination (§ 20 para. 7 GlBG).h) Entitlement to vocational guidance, advanced vocational training and retraining or in case of non-complianceto compensation for the economic loss as well as compensation for personal disadvantage suffered (§20 para.8 GlBG).i) Entitlement to membership and involvement in an organisation of workers or employers or any organisationwhose members carry on a particular profession, including the benefits provided for by such organisations orin case of non-compliance to compensation for the economic loss as well as to compensation for personaldisadvantage suffered (§20 para. 9 GlBG).j) Compensation for the economic loss as well as compensation for personal disadvantage suffered due to discriminationwith regard to conditions for access to self-employment. (§ 20 para. 10 GlBG).k) Entitlement to compensation for the economic loss as well as to compensation for personal disadvantage sufferedin case of harassment. (§20 para. 11 GlBG).III) Legal consequences (sanctions) for non-compliance with the equal treatment regulation, i.e. discrimination on thegrounds of race or ethnic origin with regard to the provision of social protection, including social security andhealthcare;a) Entitlement to compensation for the economic loss as well as to compensation for personal disadvantage sufferedwith regard to the provision of social benefits, access to education, access to and provision of goods andservices available to the general public including housing and with regard to the conditions for self-employment(§ 30 para. 1 GlBG)b) Entitlement to compensation for the damage suffered from harassment (§ 30 para. 2 GlBG).Within the framework of the Basic Law regulating the Equal Treatment Commission and the Equal Treatment OmbudsBody - GBK/GAW Law - the government‘s draft proposal provides for 3 specific areas (1. Equal treatment of Womenand Men in the Field of Labour; 2. Equal Treatment in the Field of Labour irrespective of Race or Ethnic Origin,Religion or Belief, Age or Sexual Orientation; 3. Equal Treatment in Other Fields irrespective of Ethnic Origin) eachassigned to a panel of the Equal Treatment Commission as well as to Ombudsmen/women (attorneys) of the EqualTreatment Ombuds Body.The ombudsman/woman for questions of equal treatment in the field of labour irrespective of race or ethnicorigin, religion or belief, age or sexual orientation is responsible for rendering guidance and assistance to personsconsidering themselves discriminated pursuant to Part I, section 2 GlBG. He/she conducts this activity independently(§ 5 para 1 GBK/GAW Law). He/she is entitled to request a written statement from the employer or organisation con-
Page 3 and 4:
ContentsIntroductionPreface by the
Page 5 and 6:
Racism Report 2003 Introduction Pag
Page 7 and 8:
Racism Report 2003 The Death of Che
Page 9 and 10:
Racism Report 2003 Cases: Public Sp
Page 11 and 12: Racism Report 2003 Cases: Public Sp
Page 21 and 22: Racism Report 2003 Cases: Media Pag
Page 27 and 28: Racism Report 2003 Cases: Racist Gr
Page 29 and 30: Racism Report 2003 Cases: Police Pa
Page 37 and 38: Racism Report 2003 Cases: Public In
Page 39 and 40: Racism Report 2003 Cases: Work Page
Page 41 and 42: Racism Report 2003 Cases: Housing P
Page 43 and 44: Racism Report 2003 Cases: Housing P
Page 45 and 46: Racism Report 2003 Cases: Against Z
Page 47 and 48: Racism Report 2003 Full Reports Pag
Page 53 and 54: Racism Report 2003 Focus Issue: Rac
Page 61: Racism Report 2003 Focus Issue: Rac
Page 65 and 66: Racism Report 2003 Our Demands Page
Page 71 and 72: Racism Report 2003 Equal Opportunit
Page 73 and 74: Racism Report 2003 List of contribu
Page 75 and 76: Advertisement
Page 78: The ZARA team at the counselling ce
show all

Racism Report 2003 - Zara

Create successful ePaper yourself

Delete template?

Save as template?