English - CEDAW Southeast Asia

CEDAW and the Law:
biologically incapable of working in most of the professions listed as harmful to women. In any
event, in all of these cases, the work is harmful to both men and women.
Any distinction between the sexes must be subject to a gendered analysis; for example,
by asking are women disproportionately affected by a particular toxic substance and thus
requiring special protection It is also obvious that distinctions must be made on account of
pregnancy or maternity as this requires special care. However, it should be noted that not all
women are pregnant or nursing and, hence, reasonable application of such protection is
required. Lastly, it should always be borne in mind that restricting women’s right to work is the
exception rather than the rule, and this exception is subject to strict examination and scrutiny.
On this note, Article 13(3)(c) of the Law on Gender Equality also provides: “Employers create
safe and hygienic conditions for female workers in some hard and dangerous professions and
occupations or those that have direct contact with harmful substances.” Although this appears
to be a step on the right direction, there should be conceptual clarity in the application of this
provision. This provision should allow women to participate in all occupations and professions
in the same way as men, subject to occupational health and safety measures for both men
and women.
Recommendation: Article 113 of the Labour Code and its supplementing
documents must be reviewed. Almost all of the provisions listed as harmful to women
are in the nature of protective legislation and must be repealed. Those listed as harmful
to pregnant or nursing women must be subject to constant review in the light of new
developments in occupational safety, health and technology. Where women are
disproportionately affected, and restrictions to the right to work are necessary, this
must be on the basis of a gendered analysis and subject to strict scrutiny, a welldefined
time-frame and regular review. These guidelines have to be incorporated into
provisions that limit women’s participation in specific fields of work, so as to
continuously take into account developments in occupational health and safety and
State action to guarantee their right to work and to dispel harmful stereotypes of
women, especially of work inferiority. It is also recommended to avoid confusion as to
the application of Article 13(3)(c) of the Law on Gender Equality that a legal document
provides further clarity as to its application. This provision should not be deemed to
prevent women from working in hard, dangerous or harmful occupations or
professions, rather it should be read as providing women the same work opportunities
as men, but require employers to put in place occupational health and safety measures
for both men and women workers.
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There are several other measures in favour of women relating to their access to
employment. Article 111 of the Labour Code states that an employer must give preference to
a woman who satisfies all recruitment criteria for a vacant position that is suitable to both
males and females in an enterprise. This provides a preference to women. However, this is
best suited for jobs, industries or positions that are male-dominated rather than to all jobs,
industries or positions, because de facto inequality exists only in particular jobs, industries and
occupations. In like manner, in jobs, industries or positions that are female-dominated,
measures preferring males should also be considered.
Article 13(3)(a)of the Law on Gender Equality also provides, in the measures to promote
gender equality in the field of labour, the proportion of men and women to be recruited. This
Review of key legal documents and compliance with CEDAW