Swedish anti discrimination legislation regarding women at work and some legislative lessons for vietnam

This thesis will examine the provisions o f Vietnamese and Swedish law on protection o f women from discrimination at work and supervisory mechanism for ensuring the equality between men

Joint S w ed ish -V ietn am ese

T H Ư V I Ệ N

ĨRƯONG ĐẠI HỌC LÚẬĩ h à n ò i PHÒNGĐOC ỹ

Su p e r v i s o r s:

Dr Nguyen Kim Phung Prof.Dr Birgitta Nystrốm

Preface and AcknowIedgements

The law on anti-discrimination o f women at work is a very broad and complicated field invloving various law branches such as consitutional law, labor law, administrative and eve criminal Iaw It is difficult for the author to carry out a comprehensive and proíòund research only this piece o f lavv Hovvever, due to the importatance and applicability o f this topic for Vietnam nowaday, and given to the encouragement and support o f my supevisors, I have made and my graduation thesis

on the topic in hope to contribute, as much as possible, to solving issues o f anti- discrirnination against vvomen at work in Vietnam It is vvorthy noticing that studies and application in context o f Vietnam o f the legistaltive experiences o f Sweden, the country that has achieved great success in this area o f law, will be o f big interest in Vietnam

I vvould like to give my deep thanks to professor Birgitta Nystrốm, Lund University and doctor Phung Nguyen Kim, Deputy-Dean o f the Department o f Post-Graduation

o f Hanoi Law Univversity, for their kind and invaluable guidances and remarks made throughout m y studies on the topic I also want to thank the librarians o f Lund University and Hanoi Law University for helping me to collect the necessary materials, my colleagues and íriends for giving me thoughtíul comments on the contents o f t h e thesis and inspiring to perữom this research

Table of Content

Preĩace and Acknovvledgem ents 1

Table o f C o n te n t 2

A bbreviations 3

Executive S u m m a ry 4

1 I n tr o d u c tio n 6

2 C om parison o f Swedish and V ietnam ese legislation on anti-discrim ination o f wom en at w o r k 10

2.1 Deĩining the c o n c e p t s 10

2.1.1 Introductory remark 10

2.1.2 The concept o f equality .11

2.1.3 The concept o f discrimination 13

2.1.4 The concept o f anti-discrimination 16

2.2 Development o f the Swedish on anti-discrimination law regarding vvomen at w o r k 21

2.2.1 The period beíbre 1995 21

2.2.2 The period from 1995 until present .25

2.3 T h e íu n d am en tal issucs o f thc currcnt Svvcdish anti-discrim ination lavv regarding w om en at work in comparison with those o f V i e t n a m 29

2.3.1 Anti-discrimination o f vvomen at w o r k 29

2.3.2 The current legislation o f Sweden and V i e tn a m 31

3 Im proving V ietnam ese legislation in the light o f Swedish experiences 47 3.1 Some Svvedish experiences o f anti-discrimination legislation regarding wom en at w o r k 47

3.2 The demand to improve for Vietnamese anti-discrimination law regarding wom en at work 48

3.3 Some proposals for improving Vietnamese legislation 50

3.3.1 Some proposals on the content o f legal provisions 51

3.3.2 The improvement a lte rn a tiv e 53

4 C o n clu sio n 54

Table o f Statutes and other Legal Instruments 56

B ibliography 58

Europe

Executive Sum m ary

Law on anti-discriinination o f women at work is a necessary instrument for ensuring equality o f women in work, and hence their equality in the society and in family life Svvedish and Vietnamese Governments have adopted many laws and regulations on this matter These law and regulations produce good effect in handling the issues relating to discrimination against women at work However, the laws and regulations, the mechanism o f implemetation and supervision in Sweden and in Vietnam differ from each other in many aspects due to various political, socio- economic íactors Swedish legislation on anti-discrimination o f women at work is even though has been established later than that in some other countries in European Union, for instance, United Kingdom, France, but compared to Vietnam it is more concrete and effective Issues o f discrimination against women at work are governed

in specific laws rather concentrated in the Labour Code as in case o f Vietnam It is worthy noting that Vietnam has achieved big steps íbrvvard in advancing its law on anti-discrimination o f women at work Hovvever, laws and regulation o f Vietnam on this issue are still general and vagues The implementation o f provisions on discrimination against wom en at work is not so effective due to various reasons among which the complexity o f law system, the effectiveness o f enforcement bodies should be listed íìrstly Vietnamese law system is characterized with diversity o f legal normatìve acts and delegation mechanism o f implementation More concretely, when a law is adopted, its implementation depends on a guidance decree o f the Government since many important issues o f the subject-matter o f the law the National Assembly delegates to the Government to provide for In its turn, theGovernment often delegates to the Minister and Chairmen o f the People’sCommittees to guide implementation o f its decree So, vvhen adopted, the provisions

o f a law that already effective may not be applied soon after

Sweden in country that has been rated by many international organizations andexperts as the country vvith high level o f enssuring equaliy o f women, including the effective protection o f wom an workrer at work Not doubt this achievement has gear contribution o f lavv on anti-discrimination o f women at work Which are good points

or weaknesses in Swedish legislation on anti-discrimination o f women at work? Analysis o f these points is very useíul for Vietnam on improving its law on this issue The purpose o f this research is to explore the legislative experiences of Sweden in effective ensuring equality o f women at work in particular and at the society in general, and possibility o f their application in context o f Vietnam The results o f the research on this issue has big value novvaday since Vietnam is going to

improve the legal system to more eíĩectively ensure equality, democratic rights and íreedoms o f the people according to the Resolution No 48/NQ-TW on Strategy on building up and improvement o f the legal system adopted on May 24, 2005 Furthermore, the National Assembly has recently adopted law on Gender Equality and is going to adopt new Labor Code Implementation o f Law on gender Equality and preparation o f New Labor Code will touch upon a lot o f issue relating to anti- discrimination o f woment at work For the above-mentioned reasons, the choice o f

topic ííSw edish legislation on anti-discrim ination o f wom en at w o r k ” will bring some

value for Vietnamese law-drafters

The research, due to its scope ĩocuses mainly on Svvedish and Vietnamese regulations on anti-discrimination o f women at vvork Thus, the general legislative regulations on anti-discrimination are not the subject and scope o f this thesis They may be cited to emphasize the conclusions and íìndings o f the research

On basis o f the designated purpose and study scope as indicated above, the author uses comparative study as the main research method This method is appropriate in exploring and showing the similarities and differences in regulations o f Svveden and Vietnam on issues relating to discrimination o f vvomen at work as vvell as in proposing suggestions to imprcwe the law and regulations o f Vietnam on basis o f experiences gained from Sweden case and the vveaknesses and limitations explored

in case o f Vietnam In addition, other methods such as analysis and statistics are also used appropriately in dealing with each concrete issue

The structure o f the thesis consists o f Introduction Part, Conclusion Part, and two chapters In Chapter 1, the author ĩocuses on two major issues: firstly, concept o f equality, discrimination, anti-discrimination with purpose to explore the nature o f the subject-matter, its reflections in theoretical aspect; secondly, analysis and evaluation

o f the current legal provisions o f Sweden and Vietnam on anti-discrimination o f women at work in comparative perspective with purpose to deeper understand the actual State o f the law o f the two countries on anti-discrimination o f women at work

In Chapter 2, the author analyzes some characteristics o f law and regulations o f Sweden and Vietnam on anti-discrimination o f women at work, weaknesses and limitations in this area o f law On basis o f the íĩndings, the author proposes some suggestions to improve Vietnamese legislation on anti-discrimination o f women at work

This thesis will examine the provisions o f Vietnamese and Swedish law on protection o f women from discrimination at work and supervisory mechanism for ensuring the equality between men and women at work.

The aim o f this thesis is to analyze the provisions on anti-discrimination o f women at vvork in Sweden and Vietnam in comparative approach for ĩinding out their good points and weaknesses that helped to íòrmulate some proposals for improving the Labour law o f Vietnam governing this issue

1 C h ap ter X, the Labour C ode o f the Socialist R epublic o f Vietnam

1.3 Limitations and materials

This thesis aims at analysing and comparing the provisions Sweden and Vietnam on anti-discrimination o f vvomen at work for ĩinding out some experiences and lessons that may be applicable to improve Vietnamese law on this issue Following this goal, the thesis narrows itself mainly with labour law o f Svveden and Vietnam However, since discrimination against women at work relates to many fields, the author also reĩerers to some fields that directly impact working w om e n’s rights and interests such as recruitment, payment and other working conditions These, because, are the essential areas at vvork that may be arise discrimination against easier than other Thus, the general anti-discrimination or provisions on discrimination against vvomen

at work in other areas do not belong to this paper

1.3.1 Sw edish legislation

T he legal provisions regarding to anti-discrim ination o f vvomen at w ork vvhich are

examined in this thesis are:

Declaration in the Article 16 o f the Instrument o f Government This is a íundamental Act on protection o f citizens from the unfavourable treatment on ground o f gender.Eqưal Opportunities Act This Act was enacted in 1979 and was replaced by the 1991 Act It contains prohibitions against discrimination, active measures to be taken by the employer More importantly, it provided for the eníbrcement mechanisms to ensure realization o f these measures The Act had made big contribution to protection o f women at work from different kinds o f discrimination Give to this, the Act has been incorporated with other act in the Discrimination Act o f 2008 In the

2008 Discrimination Act, one can find almost the contents o f the Equal Opportunities Act For instance, in section 4, Chapter 1, deíìnes all major kinds o f discrimination acts such as direct discrimination, indirect discrimination, harassment, sexual harassment Prohibitions and their exceptions are provided in different sections o f the the 2008 Discrimination Act The mechanism for ensuring the anti-dscrimination provisions in provided in Chapter 3 in form o f active measures The suppervision

to ensure equality betvveen the mother-employee and father-employee.

1.3.2 V ietnam ese legislation

Protection o f w o m e n from discrimination at work in Vietnam is governed directly in

ten articles in the Labor Code called lThe Separate Provisỉons on Female

E m p lo yees' The Code was adopted in 1994 with some subsequent amendments

Implementation o f these articles is guided in the Decree No 23/CP o f the Government and the Circular No 03-LDTBXH/TT o f the Ministry o f Labour, Invalids and Social Welfare The 2006 Law on Gender Equality is other important law source for protection o f women from discrimination This Law defines the concept o f gender equality in Article 5 and deals with equality between men and vvomen in the laboưr area in Article 13 These legal acts are the major law that the thesis analyzes

To some extend, various provisions o f the 1998 Ordinance o f Civil Servants, and the Decree No 113/2004/ND-CP on administrative fĩne o f labour violations are also examined in this thesis

In order to achieve the above-mentioned purpose and find out some recommendations applicable for improvement o f the Vietnamese Labour Law on anti-discrimination o f women, the author uses different methods depending on the nature o f each issue to be explored an analyzed

The comparative study o f legal provisions is the main method used in this thesis This method is appropriate used to explore and examining the similarities and differences in regulations o f Sweden and Vietnam, out good points and weaknesses

o f the Svvedish and Vietnamese law on protection o f women from discrimination at work This method is also used to íbrmulation some suggestions for improvement o f Vienamese legislation governing this issue

In addition, other methods such as analysis and statistics are also used appropriately in dealing with each concrete issue These methods are used to explore development o f law in Svveden and Vietnam governing protection o f women from discrimination at work

The íìrst part o f this thesis focuses on introducing the subject-matter and purpose of the research Methodology and scope limitation are discussed in this part to give more profound understanding the thesis approach

The second part will deal \vith three matters Firstly, it discusses the concepts of

equality, discrimination and anti-discrimination These concepts are analyzed in context o f the lavv o f the tvvo States and some relating International Conventions

Secondly, it discusses the development o f Swedish laws on anti-discrimination of

women at work This development is divided in the two following periods, namely beíbre and after 1995 when Sweden became a Member o f the European Union

Lastly, íbrcuses on the current provisions o f Swedish law and Vietnamese law on the

issue in comparative approach, and then identiíies the good points and weakness of the two legal systems in regard of protection o f women from discrimination at work.The third part evaluates the good points and vveaknesses o f the Svvedish laws with arguments as what lessons and experiences are appropriate for Vietnam In this part, some recommendations are made to reform the Vietnamese legislation on anti- discrimination o f women at work

Finally, in the conclusions, the author summarizes different points o f view on the core issues o f the thesis Conclusions in this part are that the Svvedish legislation on anti-discrimination o f women at work has both the good points and vveaknesses AU they are either the useful (in regard o f strong points) lessons for Vietnamese legislation on anti-discrimination o f women at work for application or for avoiding the weaknesses

Com parison o f Sw edish and Vietnamese legislation on anti-discrim ination o f women

at work

legislation on anti-discrimination of women at work

2.1.1 Introductory rem ark

Anti-discrimination at work ensures equality between men and women at the workplace in order to achieve economic equality between the sexes in employment generally All participants in the labour relation tried to achieve equality and liqưidate any discrimination between men and women in employment by way o f legal regulations and State supervision I f working women are not discriminated against, they will gain equality both in the mind and in practice They will gradually reject the social prejudices and the ingrained traditional ideas that the care o f children and the family are w om en’s responsibility; or that women are not suited to social laboưr, etc If vvorking women have equality, men vvill share with them the responsibility o f housework and child care Moreover, they will be free join in any social activity and have full opportunities to affirm their ability Further, once working w om en have equality where employment and income are concemed, they vvill not be mere dependents o f others Working wom en have the right to fully paid work so as to improve their needs and conditions as well as their family life

Active anti-discrimination activities will bring everyone equality and justice in so

it is necessary in any society It will impact favourably on every area o f society, and will, for example balance the relations between employees and employers in employment and ensure equality betvveen the sexes in the distribution o f benefits.Anti-discrimination principles regarding working women were íĩrst stated in the

1948 Universal Declaration o f Human Rights,2 to prevent actions, behaviours and rules which were contrary to human rights Then came the conventions o f the International Labour Organization, such as the Convention concerning Equal remuneration for Men and Women Workers for Work o f Equal Value, 1951 (No 100); and the Convention concerning Discrimination in respect o f Employment and Occupation, 1958 (No 111)

2 Article 1, Universal Declaration o f Human rights o f 1948.

When talking about anti-discrimination at work, vve are talking about measures to ensure equality and justice betvveen men and women vvorkers The measures prevent there being unfavourable employer actions against vvomen in comparison to what men receive In other words, the aim is to ensure equality and prohibit discrimination between men and women at work.

As mentioned above, anti-discrimination o f women at work is carried out to ensure equality betvveen sexes, to prohibit employer’s discrimination against working women Thus, the appearance o f concepts ‘equality’, ‘discrimination’ and ‘anti- discrimination’ is closely related to concept o f anti-discrimination o f wornen at work So these concepts will be dealt with in the most general in order to form the argument base for examination o f anti-discrimination o f women at work However,

in the interests o f this thesis, the author will only deal vvith these concepts in so far as they relate to the gender element

2.1.2 The concept o f equality

Equality is the corner-stone o f every democratic society vvhich aspires to social justice and human rights As we have seen, the Universal Declaration o f Human Rights stated that “ All human beings are bom free and equal in dignity and rights” ;3 following that, all peopie should be free and equal in dignity and rights, with a disregard o f whether they are men or women Equality is justice in the bestowal o f beneíìts, rights and obligations o f everyone; and betvveen persons o f the same sex and different sexes in all íìelds whether economic, political, social-cultural, labour or ĩamilial The formal principle o f equality derived from Aristotle’s statement that

“things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness”.4 According to his deíĩnition,

equality implies that like cases should be treated alike and unlike cases unlike in proportion to their unlikeness However, the principle “things thai are alike should

be treated alỉke” can lead to inequality where, for example, if a factory rules that all

employees are worked in an area with alike things as the light, safety working clothing, and toiletroom, etc, these may be inequality if that things only are one kind for male sex, means that the safety working clothing or the toiletroom are not made appropriate to vvomens’ special features In contrast with formal Aristotelian equality, substantive equality is íbunded on the principle that all human beings are of

C om parison oJ Sw edish and Vietnamese legislation on anti-discrim ination ofw o m en

al w ork

3 Art 1, The Universal Declaration o f Human Rights, 1948.

4 Khurana, J., (2007), p.9.

equal worth and are possessed o f the same innate human dignity, which the law must uphold and protect, not just in form but in substance.5

According to the Universal Declaration o f Human Right 1948, equality is the íòundation o f ĩreedom, justice and peace in the \vorld, and equal rights are inalienable rights o f all members o f the human íamily.6 Thus, equality is the most basic right and cannot be absent in any area o f social-life This means that mankind will have not justice, if it does not consider equality as the corner-stone o f every aspect o f social life

Equality o f rights for women is a basic principle o f the United Nations.7 The Preamble o f the Charter o f the United Nations sets as a basic goal "to reaffirm faith

in íundamental human rights, in the dignity and vvorth o f the human person, in the equal rights o f men and women".8 Furthermore, Article 1 o f the Charter proclaims that one o f the purposes o f the United Nations is to achieve international cooperation

in promoting and encouraging respect for human rights and fundamental freedoms for all people vvithout distinction as to race, sex, language or religion Equality between men and women is a basic legal principle as well as a basic human right.9 The European Court has declared that the equality is a fundamental principle of Com m unity L a w 10 This means that the legislation aiming at the protection o f justice

in society in general, and the protection o f individual benefits in particular will not achieve its end, if it is not based on the equality principle Because human rights in general, and those o f women as against men in particular, are Central to almost every issue arising in society, the eqưality principle is o f the utmost importance

Equality in employment, I think entails that both men and women enjoy equal rights and beneĩits and undergo equal obligations at work; so a woman must be on the same wage scale as a man who works at the same job for the same employer At the workplace, workers are not discriminated against when seeking to be recruited as vvhether on the grounds o f age, gender or other All have the same general wage scale for equal work, as well as the same social insurance, working conditions and rest time In addition, the right to promotion, appointment or advanced training cannot

C om parison o f Swedish and Vietnamese legislation on anti-discrim ination o f women

involve discrimination on the grounds o f sex Equality in employment encompasses equal payment and equal opportunities betvveen men and women Equal payment for equal work means that people períòrming the same job or likes jobs must be paid the same vvage, regardless o f their gender.11 Equal opportunities mean that all employees have the right access to employment, right o f promotion, o f appointment or advanced training are not discriminated on the ground o f sex The employer cannot treat an employee untầvourably because o f his or her sex If a workplace lacks equality there may be disputes or strikes which impact on its íunctionings.

Equality at work aims to provide equal treatment for men and women It helps vvorking w om en become persons who act on their own initiative and can thus improve their family !ife On the other hand, the working women will also escape from the traditional ideas that they are dependt persons Equalitv is thus necessary at work and everyone needs to respect it and treat everyone eqưally

Equality has a vital role in the development and existence o f an organization, or any unit o f society, because it is a basic legaỉ principle, a basic right and, as the English philosopher John Ravvls said “justice is the íìrst virtue o f social institutions” 12 The Equal Opportunities Ombudsman o f Sweden states that gender

e q u a lity is a State vvhere men and w o m e n e n jo y the same o p p o rtu n itie s , rights and obligations in all spheres o f life.13 The Law on Gender Equality o f Vietnam states gender equality in the field o f labour that: Man and vvoman are equal in terms o f

qu aliíìcation s and age in recruitment, are treated equally in the vvorkplace regarding

work, payment and bonus, social insurance, labour conditions and other working conditions.14

In short, equality has an important role as a measure in any area o f life Equality makes humans better to each other, and more íriendly In the labour area, equality makes employees aware that they are enjoy beneíìts and rights in proportion to their contribution Employers basing themselves on equality will distribute employment without reasonably any bias or sex-discrimination

2.1.3 The concept o f discrim ination and anti-discrim ination

As this paper íòcuses on female inequality, the term discrimination will predominantly be used with regard to gender Discrimination is the application to the

11 Cotter, A-M M., (2004), p 34.

12 Gardner, J., (1996), p 2.

13 Gender equality in Svveden.

14 Article 13(1), Law on Gender Equality of2006.

C om parison o j S\vedish and Vietnamese legislation on anti-discrim ination o f \vomen

at w ork

same persons, or groups o f different terms or conditions or, by contrast, the application to different people or groups o f the same condition However, not every differentiation constitutes discrimination.13 Discrimination arises in all íìelds o f the economy and may be based on various reasons such as religion, race, color, sex and disability, marital status or other causes At the moment, discrimination on grounds

o f sex is a matter important to society concerned as it is with differences in the treatment o f men and women with respect to opportunties, rights and obligations.Discrimination occurs in various forms in everyday life The European Court of Justice has ruled that “discrimination can arise only through the application o f diíTerent rules to relevantly similar situations or the application o f the same rules to different situations” 16 The W om en’s Convention17 (CEDAW ) set forth a deíìnition

o f discrimination against women as follows:

“ any distinction, exclusion or restriction m ade on the basis o f sex vvhich has the effect or purpose o f im pairing or nullifying the recognition, enjoym ent or exercise

by w om en, irrespective o f their m arital status, on a basis o f equality o f men and

w om en, o f hum an rights and íundam ental ĩreedom s in the political, econom ic, social, cưltural, civil or any other íìeld” 18

As defined by the ILO, any distinction, exclusion or preference made on the basis

of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect o f nullifying or impairing equality o f opportunity and treatment

in e m p lo y m e n t or occupation is discrim in ato ry 19 A longside raciai discrimination,

gender discrimination can be seen as one major form o f discrimination vvhich is o f great concern throughout the world

Gender disscrimination in the labour area involves the unequal treatment o f men and women, affecting remuneration and access to employment.20 This matter thus need to be regulated by laws, acts or legal documents, that depend on each State Svvedish legislation deĩines discrimination in the Equal Opportunities Act 1991 as happening when employers places a jo b seeker or an employee at a disadvantage by treating that person less íầvourably than someone in a similar position or applies a

provision, a criterion or a practice that appears to be neutral but vvhich in practice is particularly disadvantageous to persons o f One sex or the other.

Vìetnamese legislation has not deĩined the concept o f discrimination clearly, but the provisions regarding discriminatory prohibitìon are stipulated in concrete cases in

10 articles o f Labour Code For instance, employers are strictly prohibited from conduct which is discriminatory towards a female employee or condưct vvhich degrades the dignity and honour o f a female employee An employer must implement the principle o f equality o f males and ĩemales in respect o f recruitment, utilization, wage increases, and wages;21 and an employer is prohibited from dismissing a female employee or unilaterally terminating the labour contract o f a female employee for reason o f marriage, pregnancy, taking maternity leave, or raising a child under tvvelve (12) months old, except where the enterprise ceases its operation.22

Discrimination against women at work is the vvorking women are treated unfavourable lead to less advantage than men in the same situation and under the management o f an employer, or a social partner or, a statute This means that, due to the grounđ o f sex, the vvorking vvomen are restricted some rights when they joint into labour market as recruitment, payment, social security, promotion, and parental leave Thereíbre, these restrictions which are considered as the detriment to vvomen must be prohibited or íbrbidden In addition, the w o m e n ’s rights and interests are protected as the same men

Discrimination occurs in various íorms in everyday life Discrimination on ground

o f sex has two forms The fưst is direct discriminattion, which means that a person or

a group is the victim o f unfavourable treatment by an employer and that unfavourable treatment is related to personal elements as race, religion or sex Direct discrimination arises when a person intentionally imposes a decision or restriction on

a person or group such that the person or group cannot implement their legal rights in the same was as can other persons or groups As some authors comment that, direct discrimination arises where a íbrbidden ground o f discrimination is used in order to apply differential treatment where there is no justifiabe use o f that criterion.23 Direct discrimination occurs when men and women are treated differently, such as in terms

o f pay, solely on the basis o f their gender.24 Direct discrimination includes

Comparison o fS w e d is h a n d Vietnamese legislation on anti-discrim ination o fw o m en

at work

21 Article 111 (1) Vietnamese Labour Code o f 1994.

22 Article 111 (3) Vietnamese Labour Code of 1994.

23 Prechal, s and Burrovvs, N., (1990), p 8.

24 Cotter, A -M M , (2004), p 248.

discrimination due to prejudice.25 For example, an employer thinks that a pregnant wom an-worker cannot períorm properlv an assigned task and thereíbre pays her much less a man-vvorker even though in the reality both the man and Yvoman are at the same level o f períbmance o f their task The ILO, EU and Swedish Labour Law all make a distinction between direct and indirect discrimination The Equal Opportunities Act o f Sweden deíìned the concept o f direct discrimination in Article

15 and this has been seen as imposing a ban on sex discrimination; the European deíìnition is the same as this:

“ Em ployers m ay not place a jo b seeker or an em ployee at a disadvantage by treating her or him less favourably than they treat, have treated or would have treated som eone else in a sim ilar position, if such unfavourable treatm ent is gender-related”

The second form is indirect discrimination, which refers to the application o f a provision, criterion or practice that appears to be neutral but vvhich in fact is unfavourable or damaging to a person or a group For instance, if the employer does not recruit workers who are below l,7m while majority o f women in the country are

o f l,6m in height Indirect discrimination occurs vvhen men and women are treated differently because apparently neutral provision, criterion or practice determining recruitment, pay, vvorking conditions, dismissal and social security in practice disadvantages a substantially higher proportion o f the members o f one gender.26 According to the ILO, indirect discrimination occurs if intrinsically neutral rules or laws negatively aíTect certain groups, e.g female workers The Sex Discrimination Act o f 1975 o f Britain defmed indirect discrimination as applying to a woman a requirement or condition equally as to a man but vvhich is such that the proportion o f women (or men) who can comply with it is considerably smaller than the proportion

o f men who can comply with, and it is to her detriment because she cannot comply with it.27 The Section 4 o f Anti-Discrimination Act o f Sweden defines indirect discrimination as part o f ỉts ban on sex discrimination:

“ E m ployers may not place a jo b seeker or an em ployee at a disadvantage by applying a provision, a criterion or a practice that appears to be neutral but which in practice is particularly disadvantageous to persons o f One sex or the other, unless the provision, criterion or practice can be ju stified by a legitim ate aim and the m eans are appropriate and necessary in pursuit o f such an aim ”

Com parison o fS w ed ish and Vietname.se legislation on anti-discrim ination o f women

at work

25 Num hauser-Henning, A., (ed.), (2001), p 40.

26 Cotter, A-M.M., (2004), p 248.

27 Anderman, s D., (2002), p 256.

Thus, indirect discrimination arises vvhere a criterion other than a íbrbidden One is used to apply differential treatment and the use o f this other criterion leads to the same result.:s

In summary, discrimination is a concept which may be considered by judges, scholars, and others when determining vvhether there has been a violation o f peoples’ rights In general, discrimination involves unfair and unfavourable acts or treatment

o f an individual or group o f persons, most likely caưsing damage to them Whether involving direct or indirect discrimination, all such acts violate human rights and stop mankind trying to achieve a civilized, just and stable society

Anti-discrimination is the prohibition o f any distinction, exclusion or restriction based on any o f the particular characteristics o f a person or a group with a view to achieving equality for persons or groups that have the same characteristic Anti- discrimination on the ground o f sex is the prohibition o f any distinction, exclusion or restriction made on the basis ofsex The prohibition o f discrimination does not imply that no differentiation should be made between people, but that such differentiation should be on the basic o f objective and reasonable criteria, not on the ground o f sex, ethnic, race, colour, etc Anti-discrimination, vvhether on the ground o f sex or other grounds, must be exercised comprehensively It is a continuous process and must track socio-economic development in order to íbster a civilized development of society

Anti-discrimination is a íundamental principle which is applied to everyone and has become a recognized part o f international law The United Nations Charter contains provisions establishing an effective system for the protection o f human rights.29 The ưniversal Declaration o f Human Rights elaborates the United Nations Charter, it also emphasises protection o f human rights in Articles 1, 2, 4 and 7 Just

beneath the U nited Nations C harter and U niversal D eclaration o f H um an Rights,

International Covenants with more detailed provisions such as the Covenant on Civil and Political Rights which contains the principle o f anti-discrimination at Article 26 The Convention on the Elimination o f AU forms o f Discrimination Against Women and the European Convention for the protection o f Human Rights and Fundamental Freedoms also contain it

Anti-discrimination is seen as prevention o f any action which denies to individuals or groups o f people the equality o f treatment which they may wish.30

28 Prechal, s and Burrovvs, N., (1990), p 8.

Therefore, anti-discrimination must be exercised comprehensively as discrimination can appear in any area o f society such as the economy, culture, labour or family, etc These areas have mutually interlocking effects and assistance, thus, anti- discrimination should appear continuously in every area and be put under the regulation o f legislation.

There are many the legal In s tr u m e n ts o f various levels were set forth the measures

in order to protect vvomen in employment The equality in employment is protected under the Universal Declaration o f Human Rights:31

(1) Everyone has the right to work, to free choice of employment, to just and

tầv o u rab le conditions o f w ork and to protection against unem ploym ent.

(2) E veryone, w ithout any discrim ination, has the right to equal pay fbr equal work (3) E veryone w ho works has the right to ju st and favourable rem uneration ensuring for h im se lf and his family an existence w orthy o f hum an dignity, and supplem ented,

if necessary, by other m eans o f social protection.

(4) E veryone has the right to form and to jo in trade unions for the protection o f his interests.

The equal rights in employment vvithout regards to gender are ensured under the Article 55 o f the United Nations Charter It shall promote full employment, universal respect for, and observance of, human rights and ĩundamental freedoms for all without distinction as to sex

According to the Equal Remuneration Convention (ILO No 100) o f 1951, the term ‘rem uneration’ is deíined in Article 1 as the ordinary, basic or minimum wage

or salary and any additional emoluments v/hatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out o f the vvorker’s em ploym ent.32 Further, the term ‘equal remuneration for men and women workers for work o f equal value’ is deíined as rates o f remuneration established without discrimination based on sex.33 This Convention promotes equal remuneration for men and women under the Article 2:

1 E ach Member shall, by means appropriate to the methods in operation for

d eterm in in g rates o f rem uneration, prom ote and, in so far as is consistent with such

m ethods, ensure the application to all w orkers o f the principle o f equal rem uneration for m en and w om en w orkers for w ork o f equal value.

C om parison o fS w e d ish and Vietnamese legislation on anti-discrim ination o f \votnen

at work

31 A rticle 23, the Universal Declaration o f Human Rights o f 1948.

32 Cotter, A-M M , (2004), p 45.

33 Cotter, A-M M„ (2004), p 46.

Com parison t ìf S\vedish and Vietnamese legislation on anti-discrim ination o f \vomen

at work

2 This principle may be applied by m eans of:

(a) N ational Iaws or regulations;

(b) Legally established or recognised m achinery for w age determ ination;

(c) C ollective agreem ents betw een em ployers and vvorkers; or

(d) A com bination o f these various means.

The equal opportunity and equal treatment in employment are guaranteed under the Article 2 o f the Discrimination Employment and Occupation Convention (ILO

No 111) o f 1958, \vhich states that each Member for which this Convention is in force undertakes to declare and pursue a national policy degsined to promote, by method appropriate to national condition and practice, equality o f opportunity and treatment in respect o f employment and occupation, with a view to eliminating any discrimination in respect thereof.34

In addition, there are many other Iegal instruments also considered as the measures which may guarantee antidiscrimination o f women at work Those as the International Covenant on Civil and Political Rights protects the equal rights o f women and men by the Article 2 or; the Convention on the Elimination o f all Forms

of Discrimination against Women guarantees the employment rights for women in terms o f access to employment and equal pay as vvell as issue o f maternity and marriage wom en by the Article 11 or; the European Social Charter35 guarantees the

right to a fair rem uneration and equal pay by the A rticle 4 and guarantees the right to

equal opportunities and equal treatment in employment and occupation without discrimination on the ground o f gender by the Article 20

Especially, the European Union has a series o f directives aiming at ensuring equal opportunity and treatment for men and vvomen.36 The Equal Pay Directive37 establishes the principle o f equal pay refer to work which is the same or which is judged to be o f equal value, and requires Member States to introduce appropriate legal mechanisms for the redress o f all discrimination on the grounds o f gender with regard to all aspects and conditions o f remuneration The Equal Treatment

34 Cotter, A-M M„ (2004), p 47.

35 European Social Charter by the Council o f Europe o f October 18, 1961 and revised on May

3, 1996 and came into íòrce on July 1, 1999.

35 Cotter, A-M M„ (2004), p 258.

37 Council Directive 75/117/EEC o f February 10, 1975 on the approximation o f the Laws o f the M ember States relating to the application o f the principle o f equal pay for women and men.

Directive38 provides that there should be no discrimination on grounds o f gender, either direct or indirect, nor by reference to marital or family status, in access to employment, training, vvorking conditions, promotion or dismissal, but allovvs exceptions for occupational activities where a worker’s sex is a determining factor The Burden o f P roof Directive39 shall be to ensure that the measures taken by the

M ember States to implement the principle o f equal treatment are made more effective in order to enable all persons who consider themselves wronged because the principle o f equal treatment has not been applied to them to have their rights asserted by judicial process aíter posible recourse to other competent bodies.40 Further, the Parental Leave Directive41 provides that all parents o f children up to a given age to be deíined by M ember States, to be given up to three m onths’ unpaid parental leave, and for indiviđuals to take unpaid time o ff when a dependant is ill or irỹured

Each stage or status o f socio-economic development has its own characteristics Anti-discrimination needs to be ỉn accordance with the stage and social institution it regulates in order to determine the type o f discrimination it íosters and provide appropriate plans for anti-discrimination Anti-discrimination must be exercised in a uniíìed manner by way o f concrete plans created by legal provisions o f the State

In summary, anti-discrimination in general is a set o f measures taken to protect the human rights vvithout discrimination on any ground as color, race, sex, religion, etc Particularly, anti-discrimination regarding women at vvork is enacting statutes o f various levels which aim to protect the women are enjoyed opportunities o f recruitment, payment, and other working conditions the same men

C om parison o fS \v e d ish and Vietnamese legislation on anti-discrim ination o f wom en

at \vork

38 Council Directive 76/207/EEC o f February 9, 1976 on the implementation o f the principle

o f equal treatm ent for men and women as regards access to employment, vocational training and promotion, and w orking conditions.

39 Council Directive 97/80/EC on 15 December 1997 on the burden o f proof in cases o f discrimination based on sex.

40 Article 1, D irective 97/80/EC.

1 Council Directive 96/34/EC o f June 3, 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.

2.2 D evelopm ent of Swedish anti-discrimination Iaw

regarding women at work

2.2.1 T he perio d beíore 1995

The íìrst foundations o f Swedish employment legislation with respect to women appeared at the end o f the nineteenth century However, protective legislation regarding w om en only began to be enacted in 1900 with the Act on Minor Children and Women E m ployed in Industrial Work which provided that vvomen who have given birth to a child may not be employed in the ĩirst four weeks after the birth o f the child42 And this Act was then taken into a chapter in the Worker Protection Act

1912 In 1912, the Svvedish Worker Protection Act came into force (herein called the

1912 Act); it extended the period o f maternity leave to six weeks rather than four and also provided for two weeks off prior to the birth o f a child.43 To the revision in

1931, the 1912 Act was made a modest result: Women now had the right to a six- week period o f leave before the birth o f a child without needing to demonstrate a health risk.44

The Prohibition against Night Work Act was adopted in 1909 This Act prohibited the use o f vvomen in shiữs o f more than thirteen hours, and betvveen the hours o f 10:00 p.m and 5:00 a.m.vvithin certain industrial operations consisting o f more than ten persons.45 T he 1939 Act46 prohibited employers írom terminating employment based upon marriage or pregnancy, and thus gave opportunities for married and pregnant wom en to keep their jobs

Thus Swedish legislation in that period had laws for the protection o f workers in general, and working w om en and child labour in particular Nevertheless, the above provisions on the protection o f working women just stopped with restrictions o f hard and harmíiil work; reductions in night work and increases in matemal leave Pure equality between men and women in employment was not dealt with and regulated

In other vvords, in Svveden, protective laws for women at work have not been such a major issue as in Great Britain and France.47 Thus, in that period the protection o f

vvorking vvomen has limitations For a long time, Svvedish legislation has did not deal vvith discrimination in a general way.48 The legal relationship between the individual employer and em ployee in employment lavv as well as the legal relationship betvveen employer and em ployee organizations in the labour law vvas not strongly controlled Matters related to em ploym ent and labour were regulated by the social partners primariiy through collective agreements Swedish legislation in that period is entrenched in a model where the State has no role to fulfill in these issues.49 For example, it had no m inim um wage legislation, the social partners retaining the right

to regulate vvages through collective agreements In some respects, labour lavv could

be characterized as relatively inactive

In 1962, a m ore m odem approach to legislation commences vvhen the Riksdag and the G overnm ent o f Sweden ratify two Conventions o f the 1LO: the Convention

No 100 concerning Equal Remuneration for Men and Women Workers for Work o f Equal Valưe, and the Convention No 111 concerning Discrimnation in respect o f Employment and O ccupation.50 In the same year, the provisions on the restriction o f the use o f w om en in employment, such as the Prohibition against Night Work Act vvere repealed.51 These became a new starting point for anti-discriminatory leeislation in Svveden and also revealed a change in the G overnm ent’s and the legislators’ view point regarding protection o f working women which dovetailed with the IL O ’s aim and International trends: to create the economically independent

\voman.32 The adoption o f the 1974 Constitution (replacing One o f 1809) had lead to

a great change regadring all legislation related to anti-discrimnation in Sweden Article 16 stated that:

“No act o f law or other provision may im ply the unfavourable treatm ent o f a citizen

on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military S erv ice or other analogous official duties”

The constitution is the legal document with the highest authority in the Svvedish legal system The G overnm ent o f Sweden has thus indicated very strongly that there is to

be no unfavourable treatment o f any citizen on grounds o f gender shovving a commitment to anti-discrimination for every citizen and, in particular, for women

vvho have long been disadvantaged in comparison with men This is the new starting- point for anti-discrimination legisation regarding women.

Based on the new Constitution, the provision vvhich prohibited women working in mines and quarries was repealed In 1976, the Equality Committee vvas established with the task o f objectively and without preconceived notions investigating and draíting legislation against sex discrimination There was then considerable discussion on the whole issue o f discrimination as employers tend to consider any prohibition against discrimination as limiting their right to freely hire Aíter this Committee submitted its reports in 1978, the Government o f Sweden set out its íìrst Bill on the prohibition o f discrimination, which protected the individual vvorker ữ o m unfavourable treatment which discriminated betvveen men and women at the workplace However, until 1979, this Bill (the 1979 Equal Treatment between Women and Men at Work Act) was adopted completely by the Riksdag and came into force on 1 July 19 8 0.53 The Equal Treatment Act or Equal Opportunities Act had three sections: prohibitions against discrimination, active measures to be taken by the employer, and eníbrcement mechanisms and procedures This was the fĩrst fundamental anti-discrimination Act to be passed in Sweden Hovvever, the new Act was amended and added to in order to fit with other laws which were being enacted

at the same time (the Svvedish Secrecy Act 1980, the Protection Employment Act

1982, etc) Other issues were treated in 1985 regarding the proposals o f the Svvedish Equal Opportunities Ombudsman (“JứttíO”) on opening up information about other candidates in hiring or promotion procedures, granting compensation to persons called to an investigation for associated costs, etc Finally, a new Equal Opportunities Act enacted in 1991 replaced the 1979 Act Some íundamental matters were added:54

- A change in the deíìnition o f discrim ination to include situations in w hich the candidates have com parable merits, but there is a discrim inatory intent by the

em ployer;

- Allovvance of the use of information other than an agreed vvork evaluation to prove

w age discrim ination;

- E xplicit inclusion of sexual harassment and retaliatory actions as part of the

d eíìnition o f discrim ination;

- E xplicit statem ent that discrim ination includes both direct and indirect discrim ination so that the law could reach behavior disproportionately favoring one sex;

- The obligation for an em ployer to annually draft an equality plan;

Com parison o fS w e d ish a n d Vietncimese legislation on anti-discrim ination o f wom en

at w ork

53 Carlson, L„ (2007), p 125.

54 Carlson, L„ (2007), p 129.

- M ore concrete regulation for active m easures even if they can be replaced by

collective agreem ents; and

- E xpansion 0ĨJám O 's authority to enforce the law.

The 1991 Act set out a deíìnition o f discrimination, distinguished betvveen direct and indirect discrimination, and covered sexual harassment and retaliatoty actions It also has new provisions: the candidate applying for a job is as protected as an existing employee; the re p o rt on annual equality is the responsibility o f employers In addition, the 1991 Act has an important supplement giving concrete rules on active

anti-discrimination measures and expanding the jurisdiction o f the JámO.

Another change is the transíbrmation o f maternal leave from an obligation to a right o f women in 1976.55 The Parental Leave Act enacted in 1976 expanded the right to parental leave by granting rights to both parents in an effort tovvards complete íbrmal equality between the sexes in law Under the Act, the period o f leave is seven months with cash beneíìts in accordance with the Svvedish National Insurance Act A parent could take either 100% or 50% o f the leave and became eligible to take leave after either six months o f continuoưs employment, or tvvelve months o f employment within the past two years.56 Female workers not eligible for parental leave as above were given the right to maternal leave beginning six vveeks before and ending six weeks after the birth o f a child The Act aims to expand the right to parental leave for both male and íemale parents But by stating that maternal leave beginning six weeks before and ending six weeks after the birth o f

a child”,57 this provision seems to left the decision to take parental leave from the hands o f a father That is the basis for the employers refusing to respect the decision

o f a father By chance, maternal leave is an obligation for women, because during the year aíter the enactment o f the Parental Leave Act, only 0,5% o f men took parental leave.58 The 1976 Act was replaced by a new act in 1978; the 1978 Parental Leave Act retains provisions which had been found to be suitable, and adds new provisions, such as that parents ahvays have the right to reduced hours The 1978 Act itself was íurther amended many times during the 1980’s and the fưst half o f the 1990’s It and its supplements were ĩinally replaced by the 1995 Parental Leave Act This includes the right for a mother to leave work for breastfeeding, the right to compensation for

C om parison o f S\vedish and Vietnamese legislation on anti-discrim ination o f \vomen

Com parison oj Swedish a n d Vietnamese legislation on anti-discrim ination o f women

1979 Equal Opportunities Act However, the number o f acts as well as their detailed provisions show that much needs to be done to combat discrimination against women

at work

2.2.2 The period from 1995 until the present

Sweden became a Member o f the European Union in January 1995, coníìrming its integration into the development o f the Community The country was committed to reduce differences in every EU area by comparison with other Members States This means that, along with the integration o f the economy, Svvedish legislation which is seemingly neutral also has to comply with the laws o f the European Union to a certain extent, and this covers labour legislation This is because the Treaties and Laws o f the European Union set íbrth the most fundamental framework that all

M ember States must observe That said, Sweden is the Member State which has the most P ro g re s s iv e a n d appropriate a n ti-d is c rim in a tio n le g is la tio n regarding w o m e n in

the European Union.59 When Sweden joined the European Union, Swedish legislation on labour issues regarding women expanded quickly in almost every area

in accordance with the general principles and the íundamental provisions o f the legislative framework o f the European Union There are many changes in the law involving both the amendment o f the existing laws and the draíting o f new laws in accordance with the íundamental priciples o f legislation o f European Union The laws that related to the protection o f women at work were amended and completed

on some matters When the 1991 Equal Opportunities Act (hereinaữer called 1991 Act) was adopted, the Government o f Sweden completed their treatment o f such issues as gender equality, equal pay, family responsibility and work for women, parental leave, and the division o f occupations.60

Matters regarding discrimination on the ground o f sex in labor and employment matters in the European legislation system were mainly contained in certain directives These directives set íòrth the general frameworks which are mandatory

59 http://hdr.undp.org/docs/publications/ocational_papers/oc26a.htm

60 Carlson, L„ (2007), p 131.

minimum requirements imposed on the Member States There are four directives vvhich are the major source o f law concerning sex discrimination and parental leave

O f course, the fundamental anti-discrimination provision in Community law is to be found in Article 119 o f the Treaty o f Rome (now is Article 141 o f EC Treaty) This states that:

Each M em ber State shall during the ílrst stage ensure and subsequently m aintain the application o f the principle that men and vvomen should receive equal pay for equal work.

The four Directives are the Equal Pay Directive 7 5/117/EEC on the approximation o f the laws o f the Member States relating to the application o f the principle o f equal pay for men and women; the Equal Treatment Directive 76/207/EEC on the implementation o f the principle o f equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; the Parental Leave Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC and the Burden o f Proof Directive 97/80/EC on the burden o f proof in cases o f discrimination based on sex Svvedish legislation was indeed harmonized in accordance with these directives Hovvever, three directives as Directive 75/117/EEC, Directive 76/207/EEC, and Directive 97/80/EC are being now incorporated in nevv Directive 2006/54/EC o f the European parliament and o f the Council o f 5 July 2006 on the implementation o f the principle

o f equal opportunities and equal treatment o f men and women in matters o f

em ployment and occupation, and it comes into force on 1 January 2009

In order to comply with these Directives, Svvedish legislators added new provisions and amended or repealed old ones vvhich were seen as not relevant Furthermore, Sweden, as well as the other M ember States, had to abolish acts, rules and administrative provisions that created discrimination contrary to the policy and Directives o f the European Union In addition, the Member States also had to take active measures ensuring equality for vvorking vvomen On the principle o f equal pay, the 1991 Act contained detailed provisions on pay issues which complied with the requirements o f the Directive 2006/54/EC In particular, in 1998, the 1991 Act stipulated that employers (having more than nine vvorkers) must perform survey, analysis, and report activities and must prepare a plan o f action for equal pay in each year.61 The mandatory provisions on the employer’s survey obligations were extended employers shall now annually survey and analyse matters so as to prevent unvvarranted pay differentials between men and women In 2000, the Article 11 o f the 1991 Act was amended to require that any differences o f pay betvveen the sexes

61 Carlson, L„ (2007), p 132.

C om parison o fS w e d ish and Vietnamese legislation on anti-discrim ination of\vo m en

at w ork

exist, the employers shall survey and analyse the regulations and practices concerning pay and other term o f employments and indicate the active measures that

w ill be ta k e n to re m o v e th o s e d iffe re n c e s w ith in th re e y e a rs 62 F u rth e rm o re , the

provisions concerning the employer’s responsibility for sexual harassment were sharpened in this Act, mandating that employer take those measures necessary to prevent sexual harassment, and also imposing a duty to investigate in situations coming to the knovvledge o f the employer.63 The Equal Opportunities Ombudsman,

Jăm O , was given the authority to monitor these efforts and the labour unions were

given the right to petition the Equal Opportunity Council and seek ĩinancial penalties for non-compliance Since 2001, the trade Union organizations at both Central and branch level may apply for íìnes for non-compliance This change in the law was seen as an opportunity to vitalise the participation o f local trade unions in wage survey work.ố4 The newest amendments made in 2005 were intended to strengthen the 1991 Act and take the íurther measures necessary to ensure compliance vvith the

EC Equal Treatment Directive 76/207/EEC, Social Security Directive 79/7/EEC, and Pregnant Workers Directive 92/85/EEC.65 The deĩmitions o f direct and indirect discrimination were amended to be consistent with the definitions as stated in the other Swedish discrimination legislation

In the case o f parental leave, Sweden was already one o f the most generous countries

in the world,66 because under the current rules parents have a combined right to 450 days o f paid parental leave when a child is bom or adopted Moreover, Svvedish parents have the individual right to half o f the period o f parental leave, but it is possible to transfer almost all o f this period to the other parent This is a great interest

to vvorkers who are parents, simultaneously, it also is a base in order to promote equality betvveen men and w om en in Sweden It would seem that there will be no need to make any changes to Svvedish legislation in order to fulfil the requirements

o f Directive 96/34/EC on parental leave, which grants an ỉndividual right to parents

to a parental leave entitlement o f at least three months.67 Hovvever, to date, the 1995 Parental Leave Act has been amended eight times since its passage.68 The parents are

entitled to take leave o f 25%, 50%, 75% or 100% o f leave o f absence since the íìrst amendment in 19 9 6.69 A major amendment was the result o f the European Commission giving notice in 1998 for failure to legislate a mandatory two-vveek maternal leave in compliance with Article 8 (2) o f the Pregnancy Directive.70 Other amendments covered the riaht o f parents to take leave and also allovv leave one-eight time and the right to work part-time until a child was eight years o f age; further, the empoyer was obỉigated to grant leave as requested by the employee unless the employer coulđ show that it wou!d cause disruptions in the vvorkplace Significant changes were also made in 2006 The qualiíìcation requirement was removed from the Act, allowing parents to be eligible for parental leave immediately upon employment The employer now may not disfavour an applicant or employee for reasons that have a connection with parental leave in accordance with this law If dismissal ensued, this dismissal decision may be proclaimed invalid if the employee

so requests

In addition, the local o f burden o f proof indicated that, the plaintiff has no prove that she was treated less ĩavourably than someone in a comparable situation, only demonstrate circumstances that give cause to assum that she has been discriminated against or the object o f retaliatory measures; the employers have íj O show that discrimination or victimisation has not occurred These were covered by the 1991 Act and Parental Leave Act in compliance with requirements o f Community law, particularly the burden o f p ro o f in Council Directive 2006/54/EC o f 5 July 2006 on the implementation o f the principle o f equal opportunities and equal treatment o f men and w om en in matters o f employment and occupation cases o f discrimination based on sex.71 The 1991 Act sets forth case has been discriminated against or subjected to victimisation, it is up to the employer following the burden o f proof rule, Section 45a: the employer shows that discrimination or victimisation has not occurred The burden o f p ro o f rule for wage discrimination was now to be based on the Directive 2006/54/EC In case concernỉng parental leave, the Parental Leave Act ruled that ‘I f a job applicant or employee can present circumstances which give reason to believe that he or she has been subjected to unfair treatment for reasons related to parental leave, it is incumbent upon the employer to show that there has been no such unfair treatment, or that the unfair treatment is a necessary consequence

o f the parental leave’

C om parison o fS w e d ish a n d Vietnamese legislation on anti-discrim ination o f \vomen

In summary, Svvedish anti-discrimination legislation on labour and

em ployment issues has greatly changed during the period from 1995 During this period the Governm ent has amended, supplemented and enacted many concrete provisions on w om e n vvorkers in the Equal Treatment Act o f 1991 Employers must perform analyses o f any vvage differences to remove any unfairness; trade unions are part o f the wage survey process, and can seek íĩnes if they are hindered in this According to the 1995 Parental Leave Act, both mother and ĩather employees are entitled to full leave for care o f a child until the child reaches 18 monhts All employees disregard men or women are equal in recruitment, allocation o f work, promotion and dismissal for reasons connected with parental leave The employer has to demonstrate that no discrimination occurred or that the it vvas a necessary consequence o f the parental leave

2.3 T he fundamental issues o f the current Swedish

anti-discrimination law regarding wom en at w ork in com parison with those o f Vietnam

2.3.1 A nti-discrim ination o f w om en at w ork

Discrimination a^ainst women at work involves working women being treated unĩavourably by comparison with men in the same situation, this all under the control o f an employer Thus, on gender grounds, vvorking vvomen are restricted in

their rights vvhcn they jo in the labour m arket: w h eth er in recruitm ent, wages, social

security, promotion, or parental leave

The anti-discrimination provisions o f both Sweden and Vietnam are based on the Constitutions o f the respective States, and shoưld be in accordance with international labour standards

Issues relating to labour and employment in Svveden are stipulated quite explicitly and concretely in the various acts on each separate area Provisions regarding anti- discrimination are primarily covered by the 1991 Equal Opportunities Act (now it is incorporated in the 2008 Discrimination Act) and the 1995 Parental Leave Act

With the aim o f ensuring equality betvveen men and women, the 2008 Discrimination Act states that discrimination on the ground o f sex includes both direct and indirect discrimination Direct discrimination is prohibited by the provision that “ someone is disadvantaged by being treated less favourably than someone else is treated, has been treated or would have been treated in a comparable situation, if this disadvantaging is associated with sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age” (Section 4 o f Chapter 1 o f 2008 Discrimination Act) This is a form o f discrimination

C om parison o f Sw edish a n d Vietnamese legislation on anti-discrim ination o f wom en

at w ork