Report No: AUS0001888 Lifting Legal Barriers to Women’s Employment in Azerbaijan October 4, 2020 1 © 2020 The World Bank 1818 H Street NW, Washington DC 20433 Telephone: 202-473-1000; Internet: www.worldbank.org Some rights reserved This work is a product of the staff of The World Bank. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of the Executive Directors of The World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Rights and Permissions The material in this work is subject to copyright. Because The World Bank encourages dissemination of its knowledge, this work may be reproduced, in whole or in part, for noncommercial purposes as long as full attribution to this work is given. Attribution—Please cite the work as follows: “World Bank. 2020. Lifting Legal Barriers to Women’s Employment in Azerbaijan © World Bank.” All queries on rights and licenses, including subsidiary rights, should be addressed to World Bank Publications, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@worldbank.org. 2 Table of Contents 1. Executive Summary ................................................................................................................................... 6 2. Introduction................................................................................................................................................ 8 3. Economic Perspective .............................................................................................................................. 13 4. Legal Perspective ..................................................................................................................................... 16 5. Methodology to assess Occupational Health hazards/risks attributed to jobs restricted to women......... 22 6. Suggested Approach to Risk Assessment and Prevention ....................................................................... 23 6.1. Job Titles/Tasks Versus Substance Exposure ....................................................................................... 23 6.2. Prevention – the Fundament of Occupational Health ........................................................................... 25 6.3. Examples of addressing women’s reproductive health within an occupational health context. ........... 25 6.3.1. European Union ............................................................................................................................. 26 6.3.2 The United States of America ......................................................................................................... 27 6.3.3 The United Kingdom ...................................................................................................................... 27 6.3.4 South Korea .................................................................................................................................... 28 7. Findings and Considerations.................................................................................................................... 29 8. Recommendations.................................................................................................................................... 32 9. Ramifications/Requirements Resultant from the Recommendations ...................................................... 34 10. Conclusions.............................................................................................................................................. 38 Annex I ............................................................................................................................................................ 39 Annex II ........................................................................................................................................................... 41 Annex IV ......................................................................................................................................................... 44 Annex V ........................................................................................................................................................... 47 Further reading ................................................................................................................................................ 48 3 Acknowledgements This report has been prepared by Professor Kerry Gardiner (Senior Occupational Health Consultant) and Nato Kurshitashvili (Gender Specialist, World Bank) with significant input from Katrin Anna Schulz (Private Sector Development Specialist, World Bank). The team acknowledges the guidance and encouragement received from Karla Gonzalez Carvajal (Practice Manager, Transport Europe) and Sarah Michael (Country Manager) and support from other team members: Agil Abdullayev (Lawyer), Abdulaziz Faghi (Program Leader), Aymen Ahmed Osman Ali (Senior Transport Specialist), Nijat Valiyev (Senior Infrastructure Specialist), Saida Bagirli (Senior Operations Officer), Sophia Georgieva (Senior Social Development Specialist) and Vusala Asadova (Senior Program Assistant). The team would like to thank the peer reviewers Alvaro Gonzalez (Principal Economist, JOBs, World Bank), Tea Trumbic (Program Manager, Women, Business and the Law, World Bank), Lejo Sibbel (Senior International Labor Standards and Labor Law Specialist, International Labor Organization) and Yuka Ujita (Technical Specialist, Occupational Safety and Health, International Labor Organization) for their valuable comments, which improved the report. The team is grateful to Jamie Lee Brown (World Bank) for editing the report, to Olena Mykhalchenko (World Bank) for providing some background research and to Anar Akhmedov for the translation of this report into Azerbaijani and simultaneous interpretation throughout this assignment. The team would also like to thank Yashar Hamzayev, ILO National Coordinator for contacts and information. Last but not the least, the team would like to express immense gratitude to the Ministry of Labor and Social Protection of the Population of the Republic of Azerbaijan and particularly Mr. Abulfat Maharramov (Head of Labor Policy Department) for requesting and supporting this assignment. The team is grateful to Railways Window of the Mobility and Logistics (MOLO) Trust Fund for complementing the World Bank budget to undertake this work. 4 Abbreviations CEACR Committee of Experts on the Application of the Conventions and Recommendations CEDAW Convention on the Elimination of All Forms of Violence Against Women CoE Council of Europe EBRD European Bank for Reconstruction and Development ECA Europe and Central Asia ECHA European Chemicals Agency EU European Union GDP Gross Domestic Product GPG Gender Pay Gap ILO International Labor Organization IMF International Monetary Fund MHSW Management of Health and Safety at Work MoLSP Ministry of Labor and Social Protection of the Population MSDS Material Safety Data Sheets NGO Non-Governmental Organization NIOSH National Institute of Occupational Safety and Health OECD Organisation for Economic Co-operation and Development OH Occupational Health OSH Occupational Safety and Health OSHA Occupational Safety and Health Administration REACH Registration, Evaluation, Authorization and Restriction of Chemicals SDS Safety Data Sheets TA Technical Assistance UN United Nations USSR Union of Soviet Socialist Republics WBL Women, Business and the Law WEL Workplace Exposure Limits WHO World Health Organization 5 1. Executive Summary Despite an otherwise largely gender-neutral legal framework for employment, there are legal barriers to women’s participation in the labor force in the Republic of Azerbaijan . Labor laws (principally the Labor Code and Resolution No. 170 of the Cabinet of Ministers of Azerbaijan) reserve 674 occupations across many sectors of the economy for men only. For example, women cannot conduct freight wagons, lay asphalt, operate as locomotive engineers, or drive a bus with more than 14 seats in urban areas. Women are legally prohibited from being hired into a wide array of jobs that involve work underground, hazardous work and intensive physical labor. These job restrictions are a remnant of a Soviet Union law that carried over into the national legislation of the Union’s successor countries. It is likely that most of these restrictions were introduced with the intention of protecting women’s health although the lists at that time were not necessarily based on a thorough risk assessment of each job. Such lists are also a reflection of remaining stereotypical views of what jobs are considered suitable for women and what not. However, with improvements in workplace health and safety practices, as well as the automatization and/or disappearance of many restricted roles, the prohibitions are now obsolete and discriminatory. They contribute to gender-based occupational segregation in the labor market and the gender pay gap, with most of the restricted jobs being in highly paid industries. In fact, Azerbaijan exhibits the highest reported gender pay gap in the Europe and Central Asia region with women earning roughly 50 percent less than men. The World Bank mobilized Technical Assistance (TA) to support the Ministry of Labor and Social Protection of the Population (MoLSP) of Azerbaijan to review the Labor Code and subsidiary legislation from the perspective of women’s health. Building upon a critical review of the health hazards/risks attributed to restricted jobs, it recommends reforms to bring labor regulation into line with Azerbaijan’s modern legislative environment, international conventions and international good practice. This TA builds upon previous attempts by the MoLSP to remove restrictions, unsuccessful due to the lack of an evidence-based assessment of the health risks of the restricted jobs and weak institutional support. This TA seeks to address this through the adoption of an evidence-based, methodological approach to assessing disproportionate health risks of these restricted roles to women in Azerbaijan. It is not just women who are impacted negatively by job restrictions. These are also likely to hurt firms, as gender-based barriers to entry shrink the national talent pool, undermining economic development. Previous global research has shown that less legal discrimination against women is associated with higher levels of female participation in the labor force. This translates into significant macroeconomic gains. Moreover, limitations on female employment are likely to be hindering the efforts of Azerbaijan to improve the skills of its labor force and diversify the economy away from oil and gas. The restrictions could potentially pose significant barriers to implementing the Employment Strategy of Azerbaijan for 2019-2030, which aims to enhance the country’s human capital and employment. 6 In addition to the economic case for lifting these legal restrictions on women’s employment, international good practices rooted in human rights conventions call for their removal in favor of occupational health measures for all workers, regardless of gender. There is a tension between elements of Azerbaijan’s labor regulation as it applies to females and several international conventions that Azerbaijan is party to. What was established as a well-intended measure to protect women’s health has effectively become a source of gender-based discrimination at work—an outcome inconsistent with Azerbaijan’s broader legal commitments. In addition to the economic and legal ramifications of gender-based job restrictions, an occupational health (OH) review run under this TA found that the vast majority of the 674 restrictions in force lack evidence-based justification. These job-by-job restrictions are unwieldy, impractical to enforce and unable to keep-pace with the ever-changing world of work. This report recommends amending article 241 of the Labor Code and repealing Government Resolution 170 in its entirety. In place of Resolution 170, this review recommends implementing a risk-based approach to OH and ensuring that workplace hazards are accounted for adequately, elsewhere in Azerbaijan’s Occupational Safety and Health (OSH) framework. It is critical that great thought is given to ensuring that the removal of gender-based employment restrictions, in combination with a lack of OSH expertise in Azerbaijan, does not result in a regulatory gap which could put females at risk in the workplace. It is key that reform efforts be complemented by a program of delivering regulation around the management of hazardous substances in the workplace in parallel with the development of a training program to build domestic capacity around OHS and women at work. In addition to legal barriers, "soft" barriers continue to impede women’s access to Azerbaijan’s labor market. These include gender stereotypes that influence the study choices of male and female students and the prevalence of a male-dominated working culture in many sectors of the economy, especially where some of these restricted jobs are concentrated. This implies that even where legal restrictions are removed, societal expectations about women and men’s roles mean that family responsibilities impact more upon women’s ability to participate in formal employment than they do on men. Nevertheless, removing legal barriers to women’s employment will be a first important step towards promoting women’s economic empowerment, economic growth and better compliance with a range of international conventions. Moreover, this will help improve country’s international standing and contribute to attracting investors which would welcome an operating environment where they can access wider talent pool of both women and men. 7 2. Introduction Despite an otherwise largely gender-neutral legal framework for employment, there are legal barriers to women’s participation in the labor force in Azerbaijan. Labor laws (principally the article 241 of the Labor Code and the Resolution N. 1701) reserve 674 occupations and tasks for men only. These restrictions, concentrated in infrastructure sectors, are scattered across many sectors. For example, women are prohibited from working as a conductor of freight wagons, locomotive engineer, or a driver of a bus with number of seats more than 14 in urban areas. Women also cannot lay asphalt or fulfil many jobs in electric power facilities. Table 1 lists some of the occupations and tasks off-limits for women for illustration. The article 241 also prevents women from doing labor intensive jobs, in hazardous workplaces and forbids their work underground. Finally, the article 242 restricts mothers with children under three years of age to engage in night shift, overtime and weekend work. Table 1: Examples of job restrictions affecting women in Azerbaijan Sector Job restriction Agriculture Worker engaged in seed spraying Construction Operator to spread asphalt Construction Ship boilermaker Mining Miner on fire prevention and extinguishing Food Production Dough Maker Transport Driver of a bus with number of seats more than 14 in urban areas Transport Engineer and technician engaged in maintenance of airplanes (helicopters) Source: Resolution N 170 approved by the Cabinet of Ministers of the Republic of Azerbaijan, Baku, 20 October 1999 According to the World Bank’s Women, Business and the Law (WBL) 2020 report2, 90 of the 190 countries surveyed impose legal restrictions on women’s employment. 74 countries limit the work women can do in certain industries, 56 prohibit them from working in jobs deemed dangerous, and 26 countries do not allow women to work the same night hours as men. Azerbaijan is one of those economies that sets legal restrictions on women’s employment (both jobs and night hours). According to the World Bank’s 2020 WBL index, which analyzes laws and regulations affecting women’s economic opportunities based on eight indicators (Mobility, Workplace, Pay, Marriage, Parenthood, Entrepreneurship, Assets and Pension), Azerbaijan scored 78.8 on a 100-point scale when all eight indicators were considered3. However, Azerbaijan is one of only 10 out of the 190 countries evaluated in 2020 and one of only two former members of the Union of Soviet Socialist Republics (USSR) that scored 0 on the ‘Pay’ indicator that measures four components, as follows: whether (i) the law mandates equal remuneration for work of equal value, (ii) women can work the 1 The Cabinet of Ministers of the Republic of Azerbaijan approved the Resolution No.170 “On approval of the list of productions, occupations (positions) as well as underground works with difficult and hazardous working conditions where use of woman labor is prohibit ed”, Baku, 20 October 1999 2 World Bank’s Women, Business and the Law (WBL) database: http://wbl.worldbank.org/ 3 Women, Business and the aw (WBL) Azerbaijan profile https://wbl.worldbank.org/en/data/exploreeconomies/azerbaijan/2020 8 same night hours as men, (iii) women can work in jobs deemed dangerous in the same way as men, and (iv) women can work in the same industries as men. Table 2 provides data for the Pay indicator for the former USSR countries and also presents five other European countries for illustration. Table 2: Restrictions on female employment, Pay Indicator4 Does the law Can women Can women Are women mandate work the same work in jobs able to work in equal night hours as deemed the same Overall remuneration men? dangerous in industries as Pay WBL for work of the same way men? Indicator Country score out equal value as men? score of of 100 100 (2020) (2020)5 Yes Yes Yes Yes No No No No Azerbaijan 78.8 0 Ukraine 78.8 0 Kyrgyzstan 76.9 25 Belarus 75.6 50 Kazakhstan 72.5 50 Russia 73.1 50 Tajikistan 78.8 50 Uzbekistan 67.5 50 Armenia 82.5 75 Georgia 85.6 75 Moldova 84.4 75 Estonia 97.5 100 Latvia 100 100 Lithuania 93.8 100 4 Data for Turkmenistan is not available on WBL database; countries sorted by the value of the Pay Indicator. 5 Combines scores pertaining to mobility, labor, pay, marriage, parenthood, entrepreneurship, asset management and pensions. 9 Turkey 82.5 75 France 100 100 Germany 97.5 100 Poland 93.8 100 Romania 90.6 100 Source: World Bank’s Women, Business and the Law 2020, data are current as of September 1, 2019 Interestingly, it is not only Azerbaijan in the region with legal barriers to women’s employment but job restrictions are found all over the world including in quite a handful of the former Soviet Republics, though Azerbaijan is one of only two of the former Soviet Republics alongside Ukraine6 which restricts women from working in same industries as men, jobs perceived as dangerous, the same night-time hours as men and has no law mandating equal pay for work of equal value. These lengthy lists of jobs forbidden to women are a remnant of a 1932 Soviet Union law that carried over into their national legislation after the collapse of the Union. The restrictions were likely put in place by the concerns over occupational hazards to women’s reproductive health although the lists at that time were not necessarily based on a thorough risk assessment of each job. Such lists are also a reflection of remaining stereotypical views of what jobs are considered suitable for women and what not. However, with improvements in health and safety practices in the workplace over the last century, with the automatization7 of some of the restricted jobs and/or their disappearance, these restrictions have become obsolete while their implications for women and for wider societies remain significant: they result in occupational segregation in the labor market and the associated gender pay gaps. Countries around the globe including in this region have been lifting legal restrictions on women’s employment in various ways. Some lifted gender-specific restrictions on employment completely; others removed restrictions by narrowing existing regulations or provisions restricting women’s work to maternity protection (accommodations for pregnant and nursing women) or by obliging employers to comply with certain occupational health measures. Some of the examples from the former Soviet bloc are included in the Annex I. Besides legal barriers, ‘soft’ factors, such as gender roles and stereotypes alongside lack of childcare facilities and sexual harassment in the workplace8, just to name a few, present a barrier to women’s participation in the labor market. Women’s roles are seen by many as primarily household and family based in Azerbaijan, especially in rural areas9. These socially ascribed gender roles influence the division of labor for women and men along their respective productive, reproductive, and community activities. Gender stereotypes influence how professions in many traditionally male-dominated 6 Some countries such as Ukraine and Uzbekistan abolished list of prohibited jobs to women but their respective Labor Codes have yet to be amended as they contain job restrictions and other discriminatory provisions; hence the responses to some of these questions is No. 7 The authors note that automatization does not always reduce OSH risks, rather, they may create another hazards. Likewise, new technologies could give rise to new work-related hazards 8 CEDAW 2015. Concluding Observations on the 5th Periodic Report of Azerbaijan. CEDAW/C/AZE/5. Geneva 9 Azerbaijan Systematic Country Diagnostic (SCD), South Caucasus Country Management Unit (ECCU3), World Bank Group, 2015 10 sectors are viewed as “male” occupations and affect how boys and girls choose what to study in school, or how young men and women choose a career path, which in turn reinforces occupational segregation in the labor market. This means that legal barriers to women’s employment are not the only source of gender gaps in the labor market and implies that even where legal restrictions are removed, societal expectations about women and men’s roles along with many other factors will continue influencing gendered labor market outcomes. Nevertheless, removing legal barriers to women’s employment will be a first important milestone towards tackling occupational segregation and pay gaps in the labor market, which should be accompanied by public awareness campaigns addressing social norms as to what jobs are considered appropriate for women. The World Bank team’s meetings with country counterparts confirmed that these job restrictions were likely put in place by “protective” concerns over occupational hazards or threats to women’s reproductive health rather than an exclusion remit. The counterparts consulted included the Ministry of Labor and Social Protection of Population (MoLSP), Ministry of Health, State Committee for Family, Women and Children Affairs, Confederation of Trade Unions and National Confederation of Entrepreneurs (Employers) to understand historical reasons for these restrictions and the views of the consulted on the prospects of reforming the legislation. The counterparts agreed that with improvements in health and safety practices in the workplace, automatization of some of these restricted jobs to women and the disappearance of some of the restricted jobs/industries, nowadays the restrictions have likely become largely obsolete whilst the paradox is that their implications for women and for the wider economy remain significant: they result in occupational segregation in the labor market and the associated gender pay gap. The previous effort undertaken by MoLSP some years ago to remove the restrictions was unsuccessful due, in part, to the lack of evidence-based assessment of the health risks of the restricted jobs; the resultant of which was that it did not give enough confidence to decision-makers to support the reform. Therefore, the World Bank’s proposal to adopt a thorough methodological approach to assessing disproportionate health risks of these jobs to women was greatly appreciated. To this end, the World Bank mobilized Technical Assistance (TA) to support the Ministry of Labor and Social Protection of the Population (MoLSP) of Azerbaijan to review the Labor Code and the subsidiary legislation from the perspective of women’s health. The TA engaged a suitably qualified International Occupational Health expert and a local lawyer to critically review restrictions included in the Resolution N 170 and the Labor Code and to identify legislative context related to occupational health specifically related to females at work. In consultation with MoLSP, the World Bank divided this work into two phases: The first and the most labor-intensive phase (this report) concerns the review of health hazards/risks of each and every job restricted to women. The second phase will include labor reform10 and post-reform activities, some of which, subject to a request by the MoLSP, could potentially be supported by the World Bank or other agencies. The support could involve (i) creating guidance to fill in the knowledge gap created after abolishing the list of restricted jobs and training labor inspectors, occupational health specialists, industry, etc. (ii) initial steps to enforce changes in the law, include the creation of a forum to raise 10 The proposed law change will be circulated among relevant agencies for their feedback. The final version of the amendment to the Labor Code will be approved by the Parliament via one hearing and will be signed by the President. The amended or new resolution will be signed by the Prime minister. 11 awareness among employers, (iii) developing a public outreach strategy to raise awareness of the change in the law, taking into consideration the possibility of sensitivities and misconceptions that may arise and (iv) assisting with a public outreach campaign, to be led by relevant stakeholder/s, such as, for example, the State Committee for Family, Women and Children Affairs. It will be important that the National Tripartite Commission for Social and Economic Affairs is duly consulted during next steps.11 Lastly, whilst perhaps self-evident, it must be stressed that regardless of whether the Ministry undertakes the second phase independently or with support from its partners, the reform would need to go through a transparent, predictable, contestable and robust review process which, it is hoped, this report will prepare the ground for. This report (i) explains economic and legal implications of current job restrictions to women for Azerbaijan, (ii) provides compelling arguments to move away from a job-title centric form of restricting and protecting women to an exposure focused rationale, and provides other country examples that follow an exposure-focused risk approach, (iii) describes the methodology used to assess OH hazards/risks attributed to each job restricted to women, critically reviews restricted jobs and provides resultant conclusions, and (iv) recommends changes to reform Labor Code and subsidiary legislation to align them with other national legislation, international conventions and good international practice. Importantly, the report provides suggestions on how to address the ramifications resulting from these changes. It is of note that this assessment is first of its kind for Azerbaijan to systematically and methodologically review job restrictions to women from a perspective of occupational health hazards/risks using available evidence. 11 National Tripartite Commission for Social and Economic Affairs consists of representatives of MoLSP, the Trade Unions Confederation and the National Confederation of Entrepreneurs (Employers) Organizations of Azerbaijan. 12 3. Economic Perspective Relatively small gender gaps are observed in the labor market in Azerbaijan when female and male employment rates are compared: 59.4 percent of women are employed compared to 66.8 percent of men12. However, there is a stark divide between where women and men work and the type of jobs they do: women are concentrated in low wage sectors, e.g. health and education while men dominate the better remunerated sectors13. For example, only 17.2 percent of those employed in the transport and storage sectors are female, compared to 82.8 percent for their male counterparts; in the construction sector 7.1 percent of employed workers are female compared to 92.9 percent for males, and women make-up only 10.9 percent of the workforce in the electricity, gas and steam production, distribution and supply sector whereas it is 89.1 percent for males. Vertical segregation is also significant: only 10.2 percent of women whereas 89.8 percent men work as managers in civil service. Occupational segregation contributes to a high Gender Pay Gap (GPG) in Azerbaijan: on average, men earn 46 percent more when their median monthly earnings are compared with their female counterparts14. This is in fact the highest reported GPG in Europe and Central Asia (ECA). The figure 1 shows GPG for selected countries from ECA just for illustration. Figure 1: Gender Pay Gap Source: Gender Statistics Database; United Nations Economic Commission for Europe. Azerbaijan has the highest GPG out of all 44 countries in ECA for which data is available on UNECE website. The report indicates 2018 (latest available on the website of the State Statistical Committee) GPG data for Azerbaijan whilst the graph shows 2017 figure for consistency and comparison with other countries. Current international good practice based on several human rights conventions15 call for the removal of legal restrictions on women’s employment in favor of safety and health measures for all workers regardless of gender, as well as special protection in the case of maternity and disability. Apart from 12 State Statistical Committee of Azerbaijan, Labor Market Statistical Yearbook 2019 (15 years and above, 2018 data) 13 M. van Klaveren. et al, An Overview of Women’s Work and Employment in Azerbaijan , University of Amsterdam, 2010, Working Paper 10-92 14 Ibid, State Statistical Committee of the Republic of Azerbaijan. 15 See the Section on Legal Perspective. 13 the labor rights argument, which will be discussed in depth in the forthcoming chapter, there is strong evidence that removing restrictions on women’s employment is a smart economic policy. A recent research paper by the World Bank finds positive associations between improvements in law and higher female labor force participation, lower gender pay gap and less occupational segregation in the labor market16. A research by the International Monetary Fund17 (IMF) shows that countries see significant macroeconomic gains when women are able to develop their full labor market potential. A McKinsey Global Institute report18 finds that in a “full potential” scenario in which women play an identical role in labor markets to that of men, as much as US$28 trillion, or 26 percent, could be added to global annual GDP19 by 2025. At the micro level, restrictions on women’s work can limit women’s ability to get the jobs they want and maximize their earning potential. The World Bank Group’s Women, Business and the Law20 report finds that where there are legal restrictions on women’s employment, fewer women work, and the gender wage gap is wider. Furthermore, a survey of the empirical literature21 shows that job restrictions, including inaccessibility to certain jobs and night hour restrictions have been found to be negatively correlated with female employment. Barriers to women’s labor force participation are likely to be hindering the efforts of Azerbaijan to improve skills of its labor force and diversify the economy away from oil and gas. The restrictions could potentially pose significant barriers to implementing the Employment Strategy of Azerbaijan for 2019-2030, which aims to enhance the country’s human capital and employment. More women in the labor force and with skills and legal access to work in technical jobs in high wage sectors can increase the size and relevance of the skill pool available. Interestingly, research also shows that unequal laws discourage women’s participation in the private sector workforce, as well as their likelihood to become top managers and owners of firms22. The discriminatory laws barring women from entering hundreds of occupations in Azerbaijan could hinder country’s efforts to integrate more fully into the global marketplace, attract foreign investment and diversify the economy. Furthermore, removing legal barriers to women’s employment is one of the commitments that Azerbaijan would need to meet to address the comments raised by the Committee of Experts on the Application of the Conventions and Recommendations (CEACR) of the International Labor Organization (ILO) as well as the obligations under the European Social Charter23 of the Council of Europe (CoE) that the country ratified in 2004. It is also understood that this issue has been considered in the agenda of the meeting of the National Tripartite Commission on Economic and Social Affairs with participation of the Minister of Labor and Social Protection of the Population of Azerbaijan (MoLSP) and social partners - Confederation of Employers and Confederation of Trade Unions as well as academicians, public authorities and non-governmental organizations (NGOs). 16 Hyland M, et al. 2019. Gendered Laws, Policy Research Working Paper, Development Economics Vice-Presidency and Office of the Chief Economist, World Bank Group 17 Elborgh-Woytek K., et al. 2013. “Women, Work, and the Economy: Macroeconomic Gains from Gender Equality .” IMF Staff Discussion Note. 18 Woetzel, J. et al. The Power of Parity: How Advancing Women’s Equality can add $12 Trillion to Global Growt h. McKinsey Global Institute, 2015. 19 Gross Domestic Product (GDP) 20 World Bank Group; Getting to Equal, Women, Business and the Law 2016 21 Sanchari, R. Discriminatory Laws Against Women: A Survey of Literature, Development Economics Global Indicators Group, World Bank, 2019 22 Islam A, et al, Unequal Laws and the Disempowerment of Women in the Labour Market: Evidence from Firm-Level Data, The Journal of Development Studies, Volume 55, 2019. Issue 5 23 European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights as a counterpart to the European Convention on Human Rights, which refers to civil and political rights. 14 Meeting its commitments of international organizations would only enhance Azerbaijan’s international standing and contribute to attracting those investors which would welcome an operating environment where they can access wider talent pool of both women and men. This could be particularly true in light of COVID-19 reality in which many countries are reported to be making efforts to improve business environments to attract businesses moving out of those regions particularly hard-hit by the epidemic. 15 4. Legal Perspective Women’s labor rights are enshrined primarily in the Constitution and the Labor Code of the Republic of Azerbaijan. The Constitution prohibits discrimination based on gender. Specifically, pursuant to its article 25, “men and women possess equal rights and liberties”24. Article 35 stipulates that “everyone has the right to freely choose his/her activity, profession, occupation and place of work, based on his/her labor capacities” 25. Article 35 also states that “Everyone has the right to work in safe and healthy conditions, to receive remuneration for his/her work without any discrimination, and in the amount no less than the minimum wage identified by the state” 26. The Labor Code of the Republic of Azerbaijan denounces any type of discrimination in labor relations, including between men and women. Specifically, article 16 of the Labor Code notes: “in the course of the labor relations, no discrimination among employees shall be permitted on the basis of their citizenship, sex, race, nationality, language, place of residence, economic standing, social origin, age, family circumstances, religion, political views, affiliation with trade unions or other public associations, professional standing, beliefs, or other factors unrelated to the professional qualifications, job performance, or professional skills of the employees, nor shall it be permitted to establish privileges and benefits or directly or indirectly limit rights on the basis of these factors ”27. At the same time, article 16.2 of the Labor Code clarifies that “concessions, privileges and additional protection for women, the handicapped, minors, and others in need of social protection shall not be considered discrimination”28. This gives an indication that the job restrictions to women that are discussed in the consequent paragraphs are not viewed as being discriminatory, but as protection for women. Legal limitations excluding women from specific roles and conditions of work are found in three articles of the Labor Code: 211, 241 and 242. Pursuant to article 211, the relevant executive authority is required to approve the production sites and workplaces where the work of women is prohibited. Article 241(1) prohibits employers from hiring women in workplaces with difficult or hazardous working conditions, as well in underground tunnels, mines, and other underground sites. As a rule, women can work underground in roles that do not require physical work. The same is true of social work, sanitation and medical services jobs. Article 241(2) identifies the maximum limits for women for lifting or carrying of heavy items from one place to another. Lastly, article 242 of the Labor Code prohibits asking female workers who are pregnant or have children under three years of age to work during the night, overtime, non-business days or sending them on job-related travel. Below sections review these provisions in detail. 24 Paragraph II, Article 25 (Right to Equality) of the Constitution of the Republic of Azerbaijan; 25 Paragraph II, Article 35 (Labor Right) of the Constitution of the Republic of Azerbaijan; 26 Paragraph VI, Article 35 (Labor Right) of the Constitution of the Republic of Azerbaijan; 27 Paragraph 1, Article 16 (Unacceptability of Discrimination in Labor Relations) of the Labor of the Republic of Azerbaijan; 28 Paragraph 2, Article 16 (Unacceptability of Discrimination in Labor Relations) of the Labor of the Republic of Azerbaijan; 16 Article 241 of the Labor Code assigns a relevant executive body to develop the list of productions, occupations (positions) and jobs requiring difficult / hazardous work underground where the use of woman’s labor is prohibited. Pursuant to Presidential Decree No 122, dated April 15, 1999, the Cabinet of Ministers was entitled to approve the productions and workplaces, referred in Section 241 of the Labor Code,29 and with its Resolution No 170, dated October 20, 1999, the Cabinet approved the list of jobs where woman’s work is prohibited. In entirety, the decree reserved up to 674 occupations across 38 areas of economy only to men. In terms of international labor conventions, Azerbaijan ratified 58 conventions of the International Labor Organization (ILO)30 including C100 on Equal Remuneration, C111 on Discrimination (Employment and Occupation) and C183 on the Maternity Protection. The C100 and C111 are among the eight fundamental Conventions all of which Azerbaijan endorsed and which are considered to be essential principles and rights at work. It is of note that the article 1 of the C111 defines discrimination as “any distinction, exclusion or preference made on the basis of race, color, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”. Article 2 of C111 states that “Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof”, whilst Article 3 of the same C111 expects its signatory countries to undertake efforts, by methods appropriate to national conditions and practice, “to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy”. This statement is particularly noteworthy for Azerbaijan as it implies that the country is expected to amend its Labor Code and subsidiary legislation to promote equality of opportunity in respect of employment and occupation. Indeed, the most recent observations of the ILO’s Committee of Experts on the Application of the Conventions and Recommendations (CEACR) on Azerbaijan’s compliance with C111 does not leave room for interpretation as it calls Azerbaijan to repeal job restrictions without further delay31: “Since 2002, the Committee has repeatedly raised concerns regarding the prohibition of the employment of women in certain jobs, pursuant to section 241 of the Labor Code, as well as the extensive list of hazardous workplaces and occupations which are prohibited for women by virtue of Decision No. 170 of 20 October 1999. It notes the Government’s indication that, having regard to the requirements of the Convention, work is still ongoing in order to repeal the list of occupations from which women are excluded, and a bill has been drafted to amend section 241 of the Labor Code. The Committee urges the Government to step up its efforts to repeal without delay the list of occupations for which women are excluded, and to ensure that special protective measures are strictly limited to protecting maternity and not aimed at protecting women generally because of their sex or gender, based on 29 Paragraph 2, Part 2 of the Presidential Decree No 122 “On the Implementation of the Law of the Republic of Azerbaijan on the Approval, Enactment of the Labor Code of the Republic of Azerbaijan and related Legal Framework Issues”, dated April 15, 1999 30Azerbaijan Occupational safety and health country profile; International Labor Organization (ILO) 31 Observation (CEACR) – adopted 2016, published 106th ILC Session https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME, P11110_COMMENT_YEAR:3295140,102556,Azerbaijan,2016 17 stereotyped assumptions about their capabilities and appropriate role in the family and society. The Committee requests the Government to provide information on any progress made in this regard”. Elsewhere32 the ILO notes that with the exception of special considerations for maternity protection, legislation should provide men and women with equality of opportunity in the area of employment and that blanket prohibitions on women’s employment are becoming increasingly obsolete, especially in light of up-to-date scientific knowledge and technological changes. The ILO advocates for a “gender-sensitive” approach to occupational health and safety that does not contravene the principle of non-discrimination and equality. In this respect, assessing OSH hazards/risks with a gender perspective and managing preventive measures taking into account the needs of both sexes would need to take place instead of legal restrictions or gender-neutral legislation that is often based on the assumption that it will equally apply to all workers as it does not explicitly recognize gender differences and therefore may not ensure equity in protecting men and women workers. It is of note that some of the older ILO conventions, like Convention 45 on underground work adopted in 193533, prohibit women from working in certain jobs. However, these conventions are officially deemed “outdated” and as such, are in contradiction with ILO’s fundamental and more up to date conventions, such as C111 and C100. Also and interestingly, ILO actually recently abrogated two conventions: (i) The 1919 Night Work (Women) Convention and The 1934 Night Work (Women) Convention (Revised). Concerning ILO Convention No. 45 Underground Work (Women), ILO in fact invited34 the Government of Azerbaijan to denounce it and asked to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176). This point is especially important to be highlighted in case the government of Azerbaijan views C45 as an obstacle to lift legal barriers to women’s employment or an argument in favor to preserve the list. The ILO’s position clearly emphasizes that “blanket bans on dangerous work as well as night work and overtime for all women, however laudable they may seem in terms of concern for health, are contrary to the principle of equality of opportunity and treatment in employment and occupation and contribute to gender-based discrimination at work35”. The protective measures should be restricted to pregnant and breast-feeding women and not determined by stereotypes of women’s professional abilities and roles in society. Also, workplaces have to be safe for all workers, both women and men, at all stages of their life cycle. This position is of particular relevance to the above-discussed article 242 that extends some workplace protections to women beyond maternity and breastfeeding phase. Besides ILO Conventions, Azerbaijan ratified the United Nations (UN) Convention on the Elimination of All Forms of Violence Against Women (CEDAW)36 in 1995. Adopted in 1979 by the UN General Assembly, CEDAW is often described as an international bill of rights for women. It 32 10 Keys for Gender Sensitive OSH Practice – Guidelines for Gender Mainstreaming in Occupational Safety and Health , Working Paper, 2013, International Labor Organization (ILO) https://www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@safework/documents/publication/wcms_324653.pdf 33 Co 45 - Underground Work (Women) Convention, 1935 http://ilo.ch/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312190 34 Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006): Underground Work (Women) Convention 1935 (No.45), Azerbaijan (Ratification 1992) https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2252915 35 Maternity and Paternity at work: Law and Practice across the world; International Labor Organization (ILO), Geneva, 2014 https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_242615.pdf 36Convention on the Elimination of All Forms of Violence Against Women (CEDAW) https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article11 18 defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. Its Article 11 concerning employment is particularly noteworthy as it calls for its signatories to ensure equal rights to work, same employment opportunities, including the application of the same criteria for selection in matters of employment and free choice of profession and employment. CEDAW repeatedly criticized countries that maintain list of prohibited jobs for women. Notably, during the March session of the 2020, CEDAW requested the government of Azerbaijan to “provide information on the measures taken to remove the list of prohibited occupations for women in the Labor Code and ensure equal access to occupations for women and men”37. Interestingly, in 2016 the CEDAW Committee of Experts found job restrictions on women’s employment in Russia discriminatory under the convention and called for Russia to lift employment bans,38 which Russia has partly done (See Annex I). According to CEDAW experts, Russia, as a State Party to the CEDAW, is required “to create safe working conditions in all industries, rather than preventing women from being employed in certain areas and leaving the creation of safe working conditions to the discretion of employers”. Interestingly for this assessment, Russia was requested to give equal protection to the reproductive health of women and men. Remarkably, this CEDAW resolution was triggered by a judicial case brought by a Russian woman who was legally barred from taking a job as a helm of a boat despite being educated as a navigation officer. As mentioned in the preceding section, Azerbaijan has an obligation not only under ILO and CEDAW conventions but the European Social Charter39 of the Council of Europe to address employment bans for women. According to its article 8 (para 5), “with a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: (…) to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women”. It is noteworthy that the European Social Charter from 1961 originally called on Parties to regulate all women’s night work and prohibit all women from working underground, and in dangerous, unhealthy or arduous nature, but it was amended in 1996 (and ratified by the country) to limit prohibition only to the case of maternity in order to take into account the principle of equality. Moving on from specific job restrictions, pursuant to article 241(3 and 4) of the Labor Code, except for pregnant women and women with children under three years, women can engage in work involving manual lifting and carrying of heavy objects as long as their weight is within the limits specified below: • “Along with performing other duties, lifting by hand and carrying to another place of items which their total weight is no more than 15 kilograms; • Lifting to a height of more than one and a half-meter of an item which its weight is no more than 10 kilograms; 37 List of issues and questions in relation to the sixth periodic report of Azerbaijan , UN Convention on the Elimination of Discrimination Against Women, CEDAW/C/AZE/Q/6, 11 March 2020 38 “Russia’s list of banned jobs for women violated woman’s rights, needs amending – UN experts” https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17226 39 European Social Charter. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168048b059 19 • Lifting by hand and carrying to another place of items which their total weight is no more than 10 kilograms during the entire workday (work shift), and • Carrying of items by carts or other vehicles which their lifting would require more than 15 kilograms of power”.40 The ILO Convention 127 on Maximum Weight (1967), which is still in force, in fact promotes gender-differentiated weight thresholds: “The assignment of women and young workers to manual transport of loads other than light loads shall be limited” and “Where women and young workers are engaged in the manual transport of loads, the maximum weight of such loads shall be substantially less than that permitted for adult male workers”41. At the same time, ILO’s more recent OSH position promotes individual risk assessment in the workplace rather than setting blanket restrictions on maximum weight: “Ergonomic considerations (maximum weight, national standards for manual handling, etc.) should be directed away from setting different limits for male and female workers to a system based on individual human variability irrespective of sex, age or ethnic characteristics”42. In that sense, whilst the ILO’s position on weight thresholds is different to night-work or underground work restrictions, which the ILO has deemed discriminatory, ILO’s more recent OSH position with regards to weight-lifting advocates for individual risk assessment for all workers, irrespective of sex and not necessarily specifying weight thresholds. Lastly, article 242(1) of the Labor Code prohibits requiring female workers who are pregnant or have children under three years of age to work at night, overtime, non-business hours or sending them on job related travel. Generally speaking, both the ILO and World Bank consider limitations on the employment of pregnant and nursing women to be accommodations rather than restrictions. According to article 3 of the ILO’s 2000 Maternity Protection Convention 18343, member states shall “adopt appropriate measures to ensure that pregnant or breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother's health or that of her child.” Additionally, article 19 of the ILO’s 1990 Night Work Convention states that “At any point during pregnancy, once this is known, women night workers who so request should be assigned to day work, as far as practicable.” Similarly, the para 4 of the Article 8 of the European Social Charter requires the Parties to “regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants ”. Importantly, the Charter underlines that this provision “does not require States to prohibit night work, but to regulate it in order to limit the adverse effects on the health of women”. At the same time, restricting women’s work beyond one year, which is the case in Azerbaijan, could be considered overly broad which might limit women’s opportunities to find desired jobs and jeopardize their career progression. This could be particularly true in those sectors and occupations that involve atypical/night working hours. Several countries globally have removed broad bans on 40 Paragraph 4, Article 241 (Occupations and Workplaces where Women Labor is Prohibited ) of the Labor of the Republic of Azerbaijan; 41 The ILO Convention 127 on Maximum Weight (1967), article 7 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312272 42 International Labor Organization (ILO) ABC of Women Workers Rights and Gender Equality, ILO, 2007 http://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/publication/wcms_087314.pdf 43 C183 - Maternity Protection Convention, 2000 (No. 183) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C183 20 women’s night work by conditioning their ability to work at night on whether the employer implements certain occupational health measures. These measures may include providing transportation for female employees, maintaining security, allowing rest time or obtaining permission/certification from the trade union or ministry of labor. For example, in 200344, Indonesia enacted a new labor code that explicitly allowed women to work at night, but obliged employers to comply with certain occupational health measures, such as providing transportation for women workers. Another way countries could address this issue by allowing women to work at night as long as they consent, which is the case in Bangladesh45. An advantage of this approach is that it recognizes that women should have equal employment opportunities while accounting for occupational health concerns. One concern, however, is that employers may be disincentivized from hiring women in the first place if they perceive the requirement to implement occupational health measures or obtain certain permissions as burdensome, timely or costly, especially when they are not required to do so when hiring men. Better practice would be to repeal the restriction on night work altogether and require employers to comply with such occupational health measures for both male and female employees who work at night. Lastly, whilst Azerbaijan ratified ILO Convention No. 81 concerning Labor Inspection and Convention No. 129 concerning Labor Inspection in agriculture, in recent years the government has taken a number of steps that seem to be in conflict with the requirements of these Conventions, such as declaring a moratorium on Labor inspections. The promotion of Occupational Safety and Health requires improved compliance through the establishment of a fully-fledged Labor inspection service. As it transpires, there is a clear tension between some of the articles of the Labor Code of the Republic of Azerbaijan Resolution 170, and a number of international conventions that Azerbaijan signed. What has been a well-intended measure to protect women’s health has effectively become a source of gender-based discrimination at work resulting in stark occupational segregation in the labor market and the associated gender pay gaps limiting the country’s aspirations to improve skills of its entire labor force, generate employment and promote economic growth. That said, consistent with the findings of the review of the job restrictions from an OSH perspective, which will be discussed in detail in the forthcoming sections, it is recommended that articles 211 and 242 of the Labor Code be amended, and article 241 of the Labor Code and Resolution 170 – be repealed. 44Law 13/2003 concerning Manpower (Indonesian Labour Law), https://www.ilo.org/dyn/travail/docs/760/Indonesian%20Labour%20Law%20- %20Act%2013%20of%202003.pdf 45 Bangladesh Labour Act 2006, available at https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/76402/110637/F- 1265526237/BGD76402%20Eng.pdf 21 5. Methodology to assess Occupational Health hazards/risks attributed to jobs restricted to women As defined by the World Health Organization (WHO),46 "Occupational Health deals with all aspects of health and safety in the workplace and has a strong focus on primary prevention of hazards." Health has been defined as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." Occupational Health (OH) is a multidisciplinary field of healthcare concerned with enabling an individual to undertake their occupation, in the way that causes least harm to their health. Health has been defined as it contrasts, for example, with the promotion of health and safety at work, which is concerned with preventing harm from any incidental hazards, arising in the workplace. Elsewhere, in ILO’s Convention 155 on Occupational Safety and Health “the term health, in relation to work, indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health which are directly related to safety and hygiene at work” 47. One of the central tenets of Occupational Health is that, in place of selecting those workers perceived as suiting a workplace, the workplace ought to be made suitable for its workers. This is key to addressing gender-based discrimination in the workplace. Multiple different criteria for assessing Occupational Health hazard types and risks of jobs restrictions was utilized in this assignment as there are a mixture of the types of restriction – by industry, job title, generic substance and their derivatives, specific chemicals, activities and contaminants. This is compounded by the fact that there are multiple hazard categories that may be present: physical, chemical, biological and psychosocial. As an example, the criterion used to assess Physical Risks to a worker considered the physical demands of the job role including the work environment; for example, working in a sedentary environment with little physical exertion can be rated as negligible, and risks to a working in a heavy industry exposed to heavy lifting, noise and temperature etc. would be considered high. In some cases, the specific hazardous materials a worker may be exposed to were listed explicitly in the prohibited list of Resolution 170 and for this assessment a review of the optimal independent toxicological sources in conjunction with what could be determined to be the most comprehensive and reputable material safety data sheet for the hazardous material were carried out to confirm toxicity to workers. In other cases, information was limited; such as where a listed hazardous material was refereed to just as “acid”, and hence there was no information on the type of acid or if the material has been diluted which would reduce the potential health risks to the worker. For all restrictions, due to specific objective of this assignment, the assignment undertook an assessment of real evidence-based risk that is differentially worse for women and/or specific to their reproductive health or that of the gestating foetus. However, as the report highlights elsewhere, an 46 Since 1950, the International Labor Organization (ILO) and the World Health Organization (WHO) have shared a common definition of occupational health. It was adopted by the Joint ILO/WHO Committee on Occupational Health at its first session in 1950 and revised at its twelfth session in 1995. The definition reads: The main focus in occupational health is on three different objectives: (i) the maintenance and promotion of workers’ health and working capacity; (ii) the improvement of working environment and work to become conducive to safety and health and (iii) development of work organizations and working cultures in a direction which supports health and safety at work and in doing so also promotes a positive social climate and smooth operation and may enhance productivity of the undertakings. The concept of working culture is intended in this context to mean a reflection of the essential value systems adopted by the undertaking concerned. Such a culture is reflected in practice in the managerial systems, personnel policy, principles for participation, training policies and quality management of the undertaking. 47 ILO Convention 155 – Occupational Safety and Health Convention 1981 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C155 22 integrated, risk-based approach for the promotion of OSH is essential for the protection of workers, women and men. Many of the restrictions did refer to unpleasant jobs or hazardous substances/contaminants – but the study explored if there was evidence that their risk is worse for women. In terms of ranking “risk”, a confident binary approach by the team was used as a preferable means to provide clear and unequivocal guidance to the Ministry of Labor and Social Protection of the Population. The team produced a list of all restrictions and alongside each provided a considered view of their differential risk towards women and/or their feotus. A recommendation was then made as whether to reduce the list or scrap the list and provide a risk-based approach. See Annex II for more details on the methodology applied to the review of 674 job restrictions. The critical review of each restricted job was provided to the ministry separately in the Annex III. 6. Suggested Approach to Risk Assessment and Prevention During the inception phase of this work, the MoLSP placed a considerable emphasis on the rationale for abandoning a job-title centric form of restricting and protecting women. This chapter provides several robust reasons why an exposure-focused rationale is better than the utilization of job tasks/job- codes, which is what Resolution 170 contains. The world of work has changed very significantly in the last 50 -100 years. Historically, people gained a “trade” and specialized in not only one industry but usually just one area and job for most of their working lives. Back then, people just knew some jobs and industries as “dangerous” or “dirty” – and if occupational illness/disease manifested then people were paid “danger money” whilst those perceived to be more vulnerable (woman, very young/old, those of compromised-ability) were just excluded. As the world became more sophisticated, there was an increasing understanding that it was not the job (title) that caused the damage, but the hazards created by completion of the job and hence exposure to the individual – in to the 19th and 20th Century, the developed world became more cognizant of the actual hazards themselves and certainly in the latter part of the 20th Century there was much greater knowledge of exposure-response relationships. To compound this, there is a realization that jobs change, their titles change, the same titles are used differently between companies, the chemicals and/or processes used are no longer that created the restrictions in the first place. This has enabled Governments, with support from the appropriate scientists, to take the morally more defensible position of altering the workplace to accommodate those best suited/skilled rather than simply excluding those that might be affected if nothing changes in the workplace (hence, the best Occupational Health and Safety legislation concentrates on Control – with Risk Assessment merely being the stepping-stone to get to the Control component). 6.1. Job Titles/Tasks Versus Substance Exposure To emphasize why the utilization of job titles and job tasks used in Resolution 170 is inappropriate in the 21st Century going forward, the following are some justifications: • A job task/title always defines a moment in time – e.g. a period later it will be called something else; and hence, would require legislatures to continually be updating the list. 23 • Industrial activities change what they do, how they do it and what they use to do it continually – so chemicals used 10 years ago are probably not used today. o This is especially true when industrial sectors, substances or agents are labelled as being deleterious to health particularly something as emotive as reproductive health. • The job titles/tasks mentioned in Resolution 170 reflect the Soviet Union of 70+ years ago (and so whole industrial sectors may have never even existed within Azerbaijan and/or reflect a bygone era where industrial sophistication (about what chemicals used and the levels of exposure) may not have been the ultimate. • Typically, as industry becomes more automated jobs and their inherent tasks/titles become amalgamated over time – hence, any such list would be permanently changing. • Many industries call the same activity different things (job titles) – so potentially, one company would be affected by exclusions/restrictions whereas another – would not. • The actual activities that make-up a job task/title evolve over time – so, even if the job title remains the same, the activities that make up that title may vary and so the deleterious component may not even be included. • A job task/title is not what affects an individual but the exposures resultant from the activities and the environment within which this takes place. • Many of the tasks were specific to production whereas the use may generate much higher exposure – i.e. production of pesticides is restricted but not their agricultural use where exposures will be uncontrolled. • A job title can be used by the employer in “both directions” (e.g. used to exclude or include women as desired) – as most of the Job Titles are so specific then, if they want to employ a woman, they can simply alter the Job Title so that it doesn’t match the definition in Resolution 170; whereas, if the employer is deliberately trying to exclude women then regardless of what the actual job entails they could call it the restricted Job Title – thereby excluding the person. • With so many job titles/tasks and with such specific context then the chance of most employers and more importantly the enforcing inspectors knowing what is included is very remote. • Many of the job titles/tasks relate to the same substance/contaminant e.g. Lead and Mercury. So, using a substance/agent-based system will be so much easier for employers and the Labor Inspectorate. • There are substances which are known to have an impact on the woman/foetus which are not on the list – so if fixed on a lengthy list then it becomes much harder to reflect the dynamic reality of current commerce. • As research develops new ways (and hence substances/agents that may affect reproductive health) of undertaking commercial activity, then an ever increasingly long list will be extremely cumbersome. • It is a sensitive subject area and requires subtlety and sophistication, but a woman is not trying to become pregnant (nor is pregnant) for the entirety of their adult working lives – so, having a job title that simply excludes women permanently is very crude and wasteful of the extant resource. 24 6.2. Prevention – the Fundament of Occupational Health Within the context of this assignment, the employer's duty should always be to protect the reproductive health of both male and female workers. Employers should take the necessary measures to prevent or reduce exposure/agents/actions to the level where no risk exists, if the risk assessment reveals a risk to a worker's pregnancy or her breastfeeding of the infant48. Prevention or reduction of the exposure to chemicals/agents/actions of workers can be undertaken in several ways in accordance with the widely recognized hierarchy of control, e.g. • Eliminating or substituting hazardous chemicals/agents/actions for safer alternatives • Improving the work environment by deploying protection measures (engineering controls), such as the enclosure (barriers) of the emitting process, local exhaust ventilation, general ventilation • Changing work tasks and habits (administrative) into safer procedures (time and distance) o Moving pregnant workers to another job o Granting leave to the pregnant worker in accordance with national legislation, if none of the above measures are feasible. • Use of personal protective equipment Source: National Institute for Occupational Safety and Health (NIOSH) Examples on how to phase out harmful chemicals and replace them with safer alternatives or techniques to reduce adverse health effects can be found in the Substitution Support Portal (SUBSPORT)49. The portal includes case story database presenting practical real-case examples. 6.3. Examples of addressing women’s reproductive health within an occupational health context. The following provides examples of how European Union (EU), the United States of America (USA), the United Kingdom and South Korea address the issue of reproductive hazards (not forgetting that there are also substances that effect men too). As is evident, all of them utilize a risk-based approach predicated against a limited but specific list of substances, agents, life-factors and actions – none 48 EU Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. Available: https://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992L0085:EN:HTML 49 Substitution Support Portal (SUBSPORT) was developed within the framework of the LIFE+ Program of the European Union and aims to be a reliable source of information regarding safe alternatives for hazardous substances. https://www.subsportplus.eu/ 25 utilize Job Titles. These cases were selected to show how a risk-based approach is utilized in different parts of the world. Most/all of the developed countries follow a similar substance-based approach. 6.3.1. European Union The European Union directive 92/85/EEC requires employers to assess the health and safety risks to pregnant and breastfeeding workers, and if needed, to change working conditions or offer suitable alternative work50 . If this is not feasible, then the worker should be granted leave in accordance with the national legislation. The European Union has also developed guidelines for the assessment of hazardous agents and processes as well as on what preventive measures can protect pregnant and breast-feeding workers from the adverse effects of occupational exposure51. Other legislation applicable to exposure to reprotoxic substances includes EU directive 2004/37/EC52 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work, EU directive 94/33/EC53 on the protection of young people at work and EU directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work54. Before one can conduct a proper risk assessment, agents that are potentially harmful to reproductive health and the offspring need to be identified at the workplace. Useful health and safety information on chemicals can be found on Safety Data Sheets (SDS), and some other sources, e.g. technical documentation or material from manufacturers. Safety Data Sheets usually provide information on the properties of the substance, the dangers to health, and guidance for the protection of workers. Essential occupational health information on chemicals can also be found on some on-line international databases, e.g. the International Chemical Safety Cards. The authors of this report recommend that expert advice on potentially harmful agents and how to avoid the risks be sought. Some agents have been classified in the EU as known or suspected human reproductive toxicants. This is indicated by hazard statements (H, new EU classification) or risk phrases (R, old EU classification) which may be found in Safety Data Sheets. Hazard statements for reproductive toxicity are as follows: ▪ H360: May damage fertility or the unborn child (R60, R61) ▪ H361: Suspected of damaging fertility or the unborn child (R62, R63) ▪ H362: May cause harm to breast-fed children (R64) For example, some glycol ethers and their acetates, carbon disulphide, carbon monoxide, toluene, some phthalates, bisphenol A, lead, mercury, benomyl, and maneb have been classified as substances that may or are suspected of damaging fertility and the unborn child. According to the EU directive 92/85/ETY Risk Assessment and the resultant management should also be undertaken, if pregnant and breast-feeding workers could be exposed to genotoxic or carcinogenic agents. Carcinogenic 50 Ibid, EU Council Directive 92/85/EEC of 19 October 1992 51 Guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety or health of pregnant workers and workers who have recently given birth or are breastfeeding. 52 Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (codified version). 53 Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. 54 Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work. 26 agents that may cause changes in the genetic material of the cell are considered harmful for the reproductive health because they may also induce changes in the cells of the developing foetus. For example, benzene has been classified as a substance that may cause cancer or genetic defects. With all exposures, the “Dose” someone receives is everything – nothing is completely without risk nor are there substances/agents that manifest/present absolute danger (i.e. water is toxic if you ingest too much too fast and there isn’t anything that will kill at infinitesimally small exposures). Hence, it is important to assess the magnitude, frequency and duration of exposure. Occupational hygienic measurements or biological monitoring can be used for assessing the level of exposure to chemical agents. The measuring results can be compared to Workplace Exposure Limits (WEL) that have been set to prevent occupational diseases or other adverse effects in workers exposed to hazardous chemicals. The WELs may not take reproductive effects into account and thus expert assistance will be needed in the risk assessment process. 6.3.2 The United States of America The United States of America has specific Occupational Safety and Health Administration (OSHA) standards with a regulatory position based on substances, agents, life-factors and actions. There are OSHA standards, Federal Register notices (rules and proposed rules), and letters of interpretation (official letters of interpretation of the standards) related to reproductive hazards. General Industry (29 CFR 1910) • 1910.97, Nonionizing radiation. Describes the kinds of non-ionizing radiation, warning symbols used and formula for calculating radiation levels which should not be exceeded • 1910 Subpart Z, Toxic and hazardous substances o 1910.1000, Air contaminants. Identifies hazardous chemicals many of which are potential reproductive hazards. 6.3.3 The United Kingdom In the United Kingdom regulations related to reproductive and fetal health have been written predicated against EU Directives which in themselves have taken due account of the various relevant ILO Conventions. Specific health and safety requirements relating to new and expectant mothers at work are mainly contained in Regulations 16 to 18 of the Management of Health and Safety at Work (MHSW) Regulations 1999 (SI 1999/3242). Regulation 3 of MHSW places a legal duty on all employers to assess the health and safety risks that their employees are exposed to whilst at work. Once the risks have been assessed, the employer is then required to put in place the appropriate health and safety measures to control those identified risks. In addition to the requirements of Regulation 3 MHSW, Regulation 16 of MHSW also requires that the risk assessment should include any specific risks to females of childbearing age who could become pregnant, and any risks to new and expectant mothers. These risks can be from any process, working conditions, or physical, biological or chemical agents. 27 6.3.4 South Korea The legal management and regulation on reproductive toxic agents in Korea consist of the Industrial Safety and Health Act of the Ministry of Employment and Labor and the Hazardous Chemical Substance Management Act of the Ministry of Environment. Article 39 of the Occupational Safety and Health Act notes that “The Minister of Employment and Labor shall classify and manage chemicals and physical factors that cause workers’ health hazards according to the classification standards prescribed by the Ordinance of Employment and Labor”. There is also, the ‘Regulations on Prohibited Substances and Occupations, etc. for Pregnant Women.’ South Korea utilizes the knowledge and expertise of other Governments to further and refine its position on reproductive effects – in particular, it uses The United States’ National Institute of Occupational Safety and Health (NIOSH) Pocket Guide to Chemical Hazards to provide workers, employers, and health and safety professionals with information on hazardous chemicals handled at work. A total of 49 reproductive toxicity factors are mentioned in the Pocket Guide. Research supports the importance of job adjustments in pregnancy and use of personal protective equipment. For example, pregnant women who experienced a change in work conditions following the use of a preventive measure (withdrawal from work or job reassignment) had lower risk of preterm birth than those who did not55. Job adjustment in pregnancy was also associated with a reduced absence from work56. Some studies also suggest that the risk of adverse outcome has been lower among pesticide exposed workers when protective equipment, such as gloves or a respirator, has been worn57 58. 55 Croteau, A., Marcoux, S. & Brisson, C., 'Work activity in pregnancy, preventive measures, and the risk of preterm delivery', Am J Epidemiol, Vol. 166, 2007, pp. 951-965. 56 Kristensen, P., Nordhagen, R., Wergeland, E. & Bjerkedal, T., 'Job adjustment and absence from work in mid-pregnancy in the Norwegian Mother and Child Cohort Study (MoBa)', Occup Environ Med, Vol. 65, 2008, pp. 560–566. 57 Abell, A., Juul, S. & Bonde, J.P.E., 'Time to pregnancy among female greenhouse workers', Scand J Work Environ Health, Vol. 26, 2000, pp. 131- 136. 58 Sallmén, M., Liesivuori, J., Taskinen, H., Lindbohm, M.L., Anttila, A., Aalto, L. & Hemminki, K., 'Time to pregnancy among the wives of Finnish greenhouse workers', Scand J Work Environ Health, Vol. 29, 2003, pp. 85-93. 28 7. Findings and Considerations The following describes the findings from an analysis of Resolution 170. In total, 674 restrictions were assessed, over 70% of which were found to be entirely unjustified. The remainder of restrictions typically involve working with lead, mercury and other compounds with the potential to harm an unborn foetus. Risks of these kind would be better managed through substance-specific regulation around safe-handling practices. The detailed review of each job is provided in Annex III separately. Category No. of Jobs Category Description A 471 A This job or task does not generate occupational exposures that pose a heightened risk to women vis-à-vis men C 3 B Job or industry is not thought to be present currently in Azerbaijan D 3 C This job title has insufficient detail to make a meritorious decision AC 3 D This job/chemical has the potential to give rise to a differential and elevated risks for women in juxtaposition to their male counterparts AE 1 E This job/chemical has the potential to act as a teratogen via the female parent alone (e.g. some contaminants are teratogenic in both sexes) AF 1 F This job has the potential to affect an unborn child whilst in utero via maternal systemic absorption AEF 72 DEF 110 Total 674 29 Restrictions under Resolution 170 were found to fall broadly into 3 categories representing (i) the threat of fetal harm from exposure to hazardous substances, (ii) tough or arduous physical work,59 and (iii) worksite responsibility (see Annex IV). Some job descriptions feature a diverse collection of tasks, one or more of which may fall into these categories60 while others are of questionable relevance to Azerbaijan’s contemporary economy, reflecting a Soviet-era job market.61 Within category (i), it is typically the risk of substance exposure and not the job itself which poses plausible risk to humans and unborn children.62 In other cases, specific risks are either undefined (e.g. exposure to toxic chemicals)63 or extreme in their specificity (operation of doughing machines with a capacity of 330L).64 Resolution 170 also lists jobs which seem to be improperly categorized,65 or reflect traditional notions of paternalism66 instead of legitimate occupational health concerns. Such diversity in terms of specificity, measurability and relevance to Azerbaijan’s modern economy highlights the nearly impossible nature of attempting to maintain a credible, evidence-based list of gender-specific occupational hazards. A modern approach to managing occupational hazards requires significant technical capacity to develop the criteria needed to assess substance regulation, thresholds for exposure and develop risk management practices. This needs to be matched with the private- sector resources needed to accommodate and enforce OH regulation. In recognition of the complexity and importance of developing the regulations, standards and practices needed to protect workers of both sexes, international organizations such as the WHO, ILO and the OECD67 have come to play a key role in developing and sharing evidence-based best practices in the field of OH. Any attempt to develop a similar set of modern standards on a gender-specific, job-by-job basis would lack credibility. Vast resources would be required to update an exhaustive list of job descriptions on an ongoing basis. Instead of protecting vulnerable groups, the enforcement of restrictions, while being almost impossible, could lead to employers excluding women from roles unaffected by restrictions for fear of having to navigate complex, ever-changing regulation. Regulating the labor of one group and not another is ineffective, unjustified by evidence and harmful through its effect on labor market competition. Resolution 170 was drafted for an age and economy that don’t resemble Azerbaijan in 2020. Its attempt to regulate hazardous substances and working conditions on a job-by-job basis targeting 59 Example: Resolution 170, Line 810. Stone dressing and fabrication of stone-foundry wares – “Stonemason”. Line 810 60 Example: Resolution 170, line 193. Mining (Common occupations (professions) on open cast mining, surfaces of current and being built process mines, dressing, agglomeration, briquetting, field and capital mining operations - Common dressing, agglomeration, briquetting occupations (professions)) – “Workers and masters of dressing and grinding-sorting factories, mines, pits and primary metals establishment engaged in grinding, degradation, communition and blending of ores of ferrous, nonferrous and rare metals, flour spar and coal, when dust containing 2% and more of free silicon carbide is formed at manual performance of work”. Line 193 61 Example: Resolution 180, Line 1103. Graphic arts production (Work relating to application of lead alloys) – "Fixer of printing equipment engaged in areas of pouring stereotypes, font, type matters and blank materials”. 62 Common among jobs involving the use of lead and mercury. 63 Example: Resolution 170, line1003. Food industry - Mills, enterprises on production of food mixtures from various feed, plants on processing of hybrid and various type corn seeds, elevators, grain receiving enterprises (receiving stations) and bases “ Workers engaged in performance of work on warehouses of toxic chemicals and drug- sprayed corn seeds.” 64 Example: Resolution 170, Line 925. Food industry (Fish extraction and processing - Fish processing operator engaged in) – “cutting off heads of redfish.” 65 Example: Resolution 170, line 842. Textile and light industry (Common textile production occupations) – “Fitter of sanitary systems and equipment engaged in sewage trenches cleanout”. 66 Example: Resolution 170, line 987. Food industry (Common food production occupations - Macaroni production) – “Workers engaged in manual pouring of flour as per production laboratories procedures”; line 1031. Railway transport and the metro – “Conductor of freights wagons”. 67 Organization for Economic Co-operation and Development 30 females is inappropriate for a rapidly changing world of work, arbitrary68 and incomplete.69 Interviews with stakeholders highlighted a lack of awareness and enforcement among industry and workplace inspectors. The Resolution is not only unfit for purpose as a promoter and protector of modern occupational health standards in Azerbaijan but jeopardizes ongoing reforms in the labor sector. 68 Restrictions sometimes apply to specific actors (e.g. managers) but not others who may be exposed to 69 Examples of workplace requirements and substances known to impact female reproductive health but not well-captured by Resolution 170 can be found in Annex V. 31 8. Recommendations The following text constitutes the recommendations (A – H) that follow from the analyses (both legal and toxicological/occupational health & hygiene) described above and the resultant ramifications & requirements (I – XI). It is recommended that the recommendations and ramifications are read as one. The following are the recommendations resultant from this investigation: A. Cancel/revoke article 241 of the Labor Code and Government Resolution 170 (approved by the Cabinet of Ministers of the Republic of Azerbaijan) in its entirety. B. Consider amending the part of the article 242 (1) “Calling of women workers who are pregnant or have children under three years of age for work on night shift, on overtime, or weekend, or a holiday, considered as non-business day or other days, or sending them to job related travel is prohibited” by introducing the wording that provides women workers with children under three years an opportunity to work at night as long as they consent and with the provision that they are not forced/required to work at night if they do not wish to. C. Ratify the following ILO Conventions: a. C155 - Occupational Safety and Health Convention, 1981 (No. 155). b. C171 – Night Work Convention, 1990 (No.171). c. C176 – Safety and Health in Mines Convention, 1995 (No 176). D. Denounce70 C45 on Underground Work (Women)71. E. Consider and implement a policy/procedures maybe not dissimilar to Council Directive 92/85/EEC (of 19 October 1992) - on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC). F. Other than those included in “E” above, do not create another prescriptive list of industries and jobs as new Jobs and Job Titles will arrive, and old ones will go – thereby making the list instantaneously and inherently dated and requiring constant review and update. 70 Underground Work (Women) ILO Convention, 1935 (No. 45), which deemed by ILO as outdated, is still enforced in the following countries: Azerbaijan, Belarus, Kyrgyzstan, Russian Federation, Tajikistan, and Ukraine. Countries may face procedural difficulties to denounce this Convention. Article 7 of this Convention mandates that a Member may denounce the Convention after the expiration of ten years from the date on which the Convention first comes into force and if the Member has not done so within the year – will be bound for another period of ten years.70 E.g., Ukraine had this “window” in 2018; however, failed to adopt relevant law and will have the right to denounce the Convention only in ten years. 71 32 G. Implement an entirely risk-based approach to Occupational Health (this may have ramifications across all other hazard groupings (see Occupational Hygiene issues regarding “measurement – precision/accuracy” in Ramifications below). H. Put measures in to place that, if the workplace is appropriately opened-up to women, that this is then not seen as an opportunity to employ woman as a cheap alternative. 33 9. Ramifications/Requirements Resultant from the Recommendations As the facilitation and protection of women at work is the very reason for this work - it is critical that great thought is given to ensuring that, as a result of a current lack of occupational health/labor specialists within the Republic of Azerbaijan (in both public and private sector), a knowledge-gap does not create a vacuum within which women are employed – but adequate guidance is provided concerning the few truly dangerous environments (i.e. employment of women in the jobs where they should not be employed). The following identifies some of the aspects that will require to be considered and addressed if the general premise of removing Article 241 of the Labor Code and Government Resolution 170 is to be accepted and implemented: I. Consider the active and rapid creation of limited set of exposures/substances described below that warrant specific reference such as: a. Shocks, vibration or movement b. Handling of loads entailing risks – particularly of a dorso-lumbar nature c. N oise d. Ionizing radiation e. Non-ionizing f. Extremes of cold and/or heat g. Movements and postures h. Hyperbaric (diving) i. Underground mining j. Toxoplasma k. Rubella virus l. Lead/Mercury and their derivatives. II. Consider the creation of Azerbaijani specific Guidance Notes (utilizing existing national Guidance Notes could be a start point) making a reference to the utilization of the above-listed limited set of exposures/substances to supplement and clarify any new legal provision for: a. Women at work (general)72 b. Women at work – a guide for employers c. Women at work – a guide for Occupational Health professionals. 72 Whilst the primary focus of these notes should be on pregnant and breastfeeding women, there is evidence of some substances/agents affecting women’s pre-conception capacity hence guidance that provides a broader perspective of pre-conception risks is warranted. For example, the UK has the Management of Work Regulations (1999) that includes health risks prior to conception. 34 III. If work/process/job/substance is harmful to employees, then ensure that the risk is controlled to a level where it is not (whether that’s women & their child) regardless of sex or age of a worker. IV. It is important to consider very carefully that the resultant outcome from the implementation of a new paradigm of allowing women into certain workplaces is not a different form of prejudice and inequity created by i.e. a. the opportunity for a lower paid workforce b. prejudiced return to work c. pensions affected d. (lack of) areas and empathy for breastfeeding mothers. V. Implement an education program/campaign about male/female equity and opportunities in the workplace – for industry, the working population and the Governments’ workplace inspectors VI. Consider a bespoke training program to “capacity build” employers, workers and OSH officers– in both public and private sector – with greater occupational safety and health knowledge; specifically, with regard to women at work. VII. If quantitative metrics for workplace exposures are to be used, then they should be measured by qualified and competent occupational hygienists – both in terms of their expertise to utilize the specialist measuring equipment and to interpret the results appropriately. Personal exposures for any/all contaminants can vary massively – from moment to moment, day to day, shift to shift, person to person, etc. the result of which is that a measurement taken on a person at one moment in time can provide very little positive predictivity for another moment, place, activity, person. As a result, occupational hygienists utilize specialist statistical techniques/packages to assist them interpreting results. As has been mentioned numerous times throughout this document, “toxins” do not exert their effect in a binary way – e.g. it’s present so it will cause all of the effects or its absent so no effects. Almost all toxins/agents/life-factors exert their effect by degree and with a threshold beneath which there is no discernible effect. The chemicals presented in Resolution 170 will be all be present in everyday atmospheric air if you have the equipment to measure to that degree of sensitivity and specificity (e.g. parts per trillion) but no impact occurs and so no one is bothered. VIII. Consider the concept that all chemicals that are manufactured and/or imported in to the Republic of Azerbaijan are appropriately Registered, Evaluated, Authorized and Restricted – an excellent exemplar is (REACH)73 https://ec.europa.eu/environment/chemicals/reach/reach_en.htm) i. REACH (EC 1907/2006) aims to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties 73 Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) is a European Union regulation 35 of chemical substances. This is done by the four processes of REACH, namely the registration, evaluation, authorization and restriction of chemicals. REACH also aims to enhance innovation and competitiveness of the EU chemicals industry. ii. "No data no market": the REACH Regulation places responsibility on industry to manage the risks from chemicals and to provide occupational health and safety information on the substances. Manufacturers and importers are required to gather information on the properties of their chemical substances, which will allow their safe handling, and to register the information in a central database in the European Chemicals Agency (ECHA) in Helsinki. The Agency is the central point in the REACH system: it manages the databases necessary to operate the system, co- ordinates the in-depth evaluation of suspicious chemicals and is building up a public database in which consumers and professionals can find hazard information. International Chemical Safety Cards (ICSCs)74 is another good source. iii. The REACH Regulation also calls for the progressive substitution of the most dangerous chemicals (referred to as "substances of very high concern") when suitable alternatives have been identified. iv. One of the main reasons for developing and adopting the REACH Regulation was that a large number of substances have been manufactured and placed on the market in Europe for many years, sometimes in very high amounts, and yet there is insufficient information on the hazards that they pose to human health and the environment. There is a need to fill these information gaps to ensure that industry is able to assess hazards and risks of the substances, and to identify and implement the risk management measures to protect humans and the environment. IX. To complement this, all substances should be supplied with Material Safety Data Sheets (MSDS) that are complete, comprehensive, consistent, in the local language, etc. An MSDS is a document that provides workers with procedures for safely handling or working with a particular substance. It includes technical information like boiling points, toxicities (including teratogenicity), reactivities, and various numbers; and also, it includes instructions regarding necessary protective equipment, how to handle spills, first aid suggestions, storage and disposal, and the general health effects. The exact contents and requirements can vary by country. X. With the indulgence of the Government of the Republic of Azerbaijan, it was evident that there wasn’t a comprehensive knowledge of the contents of Resolution 170. It is believed that much greater impact would be gained if all Inspection of Workplaces (not just regarding Women at Work) was undertaken by one integrated well trained/informed Labor Inspectorate located in the most appropriate Ministry (easier to resource, better and more consistent inspections/enforcement, easier to train, etc.). The Labor Inspection Service would need to meet the requirements of the ILO’s Labor Inspection Convention 8175. As noted earlier, ILO expressed concerns about the lack of fully-fledged Labor Inspectorate in the country. 74 The ICSCs project is a common undertaking between the International Labour Organization (ILO) and the World Health Organization (WHO), with the cooperation of the European Commission.https://www.ilo.org/safework/info/publications/WCMS_113134/lang--en/index.htm 75 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C081 36 XI. Support guidance for employers, workers and occupational health professionals as what to do with female employees wishing to become pregnant. Also, incorporate guidance for employers and occupational health professionals about the complex and sensitive subject of enquiring/knowing when a woman is trying to conceive – different understanding/care may be required at this particular time. Very little guidance is ever given about the subtleties and sensitivities of such an important enquiry. 37 10. Conclusions As the assessment has shown, there is a tension between elements of Azerbaijan’s labor regulation as it applies to females and several international conventions that Azerbaijan is party to. What has been a well-intended measure to protect women’s health has effectively become a source of gender-based discrimination at work resulting in stark occupational segregation in the labor market and the associated gender pay gaps limiting the country’s aspirations to improve skills of its entire labor force, generate employment and promote economic growth. In addition to the economic and legal ramifications of gender-based job restrictions, an occupational health (OH) review run under this TA found that the vast majority of the 674 restrictions in force lack evidence-based justification. As well as lacking a legitimate basis, these job-by-job restrictions are unwieldy, impractical to enforce and unable to keep-pace with the ever-changing world of work. This report recommends amending Article 241 of the Labor Code and repealing Government Resolution 170 in its entirety. In place of Resolution 170, this review recommended implementing a risk-based approach to OSH and ensuring that workplace hazards are accounted for adequately, elsewhere in Azerbaijan’s OSH framework. Lastly, even where legal restrictions are removed, "soft" barriers, such as social norms and gender stereotypes that influence the study choices of male and female students and the prevalence of a male- dominated working culture in many sectors of the economy will continue impeding women’s access to employment in the labor market. Nevertheless, removing legal barriers will be a first major step towards promoting women’s economic empowerment and better compliance with a range of international conventions. If accompanied by a country wide public awareness campaign, the legal reform can contribute to addressing social norms as to what jobs are considered appropriate for women and what not. 38 Annex I Recent labor reforms in the countries of the former Soviet Union addressing bans on female employment The following describes the actions that several countries of the former Soviet Union have taken to address bans on female working. Some countries repealed lists of professions banned for women; others revised their lists of banned professions and partially lifted some bans. Countries in the former Soviet Union that repealed lists of professions banned for women: • Armenia: In harmonizing its laws to European standards, Armenia cancelled its list of 330 banned professions for women and removed all job restrictions from its labor code in the early 2000s. • Georgia: Likewise, Georgia cancelled its lists of banned professions. The country is promoting use of risk assessment. • Moldova: On July 20, 2017, Moldova amended the Labor Code76 and lifted the ban on women's employment in mining and other industrial work. Now, the prohibition only applies to pregnant women, lactating women, and women who gave birth recently. Specifically, according to Article 248 of the amended Labor Code, it is prohibited to use the labor of pregnant women, women who gave birth recently and lactating in underground work in mines, and any other activities that pose a risk to their safety or health or which may have an impact on pregnancy or lactation, according to the minimum requirements approved by the Government. As discussed earlier in the report, the World Bank and ILO do not consider restrictions on pregnant/nursing women as discriminatory since they are for maternity protection. • Ukraine - In December 2017, Ukraine’s Ministry of Health abolished Order No. 256 of 29 December 199377, which had prohibited women from working in 458 specific jobs. However, the Labor Code has not yet been amended and the ban on jobs in mines is included (Art 174). • Uzbekistan: Uzbekistan repealed its list in March 2019 and women gained the opportunity to work in 477 previously banned specializations on May 1, 201978. The Concept of the new Labor Code has been released and has been publicly discussed in 2019. However, there is no information to confirm when Uzbekistan plans to adopt it. Countries that have revised their lists of banned professions and partially lifted some bans • Belarus: According to the Resolution No. 35 adopted by the Ministry of Labor and Social Protection on 12 June 2014, a number of professions in which female work is prohibited was reduced from 252 to 182. In September 2019, the Belarusian Ministry of Labor announced plans 77 Order No. 1254 of December 14, 2017 https://zakon.rada.gov.ua/laws/show/z1508-17 78 https://adcmemorial.org/en/news/uzbekistan-restrictions-on-womens-employment-lifted-starting-may-1-2019/ 39 to curtail the existing list of 182 banned professions. In addition, the Labor Code was amended to add guarantees for new mothers and enshrine parental leave for fathers. • Russia: On July 18, 2019, the Ministry of Labor and Social Affairs of the Russian Federation promulgated a new decree79 that replaces the current Resolution No. 162 of 25 February 2000 (which bans women from 456 jobs) reducing the list of jobs forbidden to women from 456 to 98. The change will be effective starting from 2021. Labor Code has not been amended yet to reflect the change; the ban on jobs in mines is included (Article 253). • Kazakhstan: in 2018 the Kazakh government reduced the banned jobs from 287 to 219 professions. Even though this change must be acknowledged, over 20 areas of employment, including important and essential areas like transportation, remain inaccessible: women cannot become machinists, truck drivers, or tractor operators. Jobs at heights and underground, jobs involving hot or cold temperatures, jobs in receptacles, containers, closed chambers, and double bottom and between-hull spaces, jobs involving vibration, and jobs on floating cranes and aggregate vessels are banned. Interestingly, the specializations that are no longer banned for women differ between Russia and Kazakhstan: while Russia has essentially fully opened the transportation sector to women, jobs in this sector are still banned in Kazakhstan indicating that often times the decisions to ban restrictions are not based on medical grounds but are likely fueled by social norms and gender stereotypes80. • The Kyrgyz Republic. Noting the exclusion of women from a number of areas of employment and violation of the principle of equality in the labor market, CEDAW called on the Kyrgyz government to legalize work in 446 professions for women and encourage their desire to study and work in “non-typical” specializations81. Meantime, the European Bank for Reconstruction and Development (EBRD) funded a detailed evaluation of the restricted jobs the result of which was a recommendation to scrap the entire list and adopt the relevant ILO Conventions and to create a risk-based approach for the evaluation and enforcement of substances/agents/life- factors/actions. In December 2019 a workshop was held in Bishkek at which time the rationale for change was described in front of the various invited stakeholders and agreement was reached to consider carefully the process of removing job titles 82. 79 Order of the Ministry of Labor and Social Affairs of the Russian Federation No. 512 dated July,18 2019 "On Approval of the List of Industries, Jobs and Positions with Harmful and (or) Dangerous Working Conditions, in Which the Use of Women’s Labor Is Restricted" https://perma.cc/RAY3- 6DKP 80 https://adcmemorial.org/en/news/3-years-alljobs4allwomen/#kz 81 https://adcmemorial.org/en/news/3-years-alljobs4allwomen/#kz 82 Discussions with Professor Kerry Gardiner who led the review of job restrictions in the Kyrgyz Republic 40 Annex II Methodology to assess OHS hazards/risks To simplify matters practically and visually, Resolution 170 was recreated as an Excel spreadsheet with five columns entitled (i) “Job/Job -Title/Task” (which includes the Industrial Sectors and the Job Titles/Tasks and/or substances, (ii) “Toxicological and/or Occupation Hygiene/Exposure Review” (a toxicological and occupational hygiene assessment/consideration of likely/possible exposures within that job title, whether there was a differential health impact on women and/or their children (acute/chronic morbidity, cancer risk, teratogenicity, impact on foetus outcome, etc.)), (iii) “Comments” (which enables the authors to describe/explain an industrial process or job), (iv) a “Code” letter (which was the consideration of the authors (see below)), and finally (v) a column with a “Decision” (which is the recommendation of what should be done with that Job Title or entry in to Resolution 170. Process In order for the review to be incisive, complete, thorough, and robust, the following approach was undertaken. 1. Which laws make explicit reference to women and either their work exclusion or restriction a. Read and understand them b. Understand the context within which they reside 2. Which jobs/roles do the laws identified in (1) ban for women (and some understanding of the rationale)? a. Which of these stated jobs/industries are still in existence at the time of the review? b. What new jobs exist with evidence of genuine risk to “trying/expectant/new mothers” c. Whenever or wherever a woman is prescriptively or implicitly excluded from a workplace by Statutory legislation then the putative rationale was critically assessed by the following Hazard groupings: i. Physical I 1. Noise 2. Vibration 3. Pressure – hyper and hypobaric 4. Thermal environment 5. Light 6. Ionizing radiation 7. Non-ionizing radiation ii. Physical II 1. Posture 2. Weight 3. Repetition 4. Etc. iii. Chemical 1. Dusts/fibres 2. Gases/vapours 41 iv. Biological 1. Bacteria, viruses, fungi, etc. 2. Zoonosis 3. Blood borne infections v. Psychosocial 1. Stress 2. Hours of work 3. Shift-work 4. Authority v responsibility mismatch. The Codes assigned were as follows: A This job/job-title/task does not generate occupational exposures that pose a differential risk to women – it is important to note that this does NOT mean that this job/task/exposure does not cause harm to the employee; just that there is no differential risk with women suffering from a great effect. Also, this does mean or imply that women have the same physical capabilities as men (e.g. lifting capacity (not comparable weight for weight) or thermoregulation (which typically is better than men) B This job/job-title/industry is not thought to be present currently in Azerbaijan C This job title has insufficient detail to make a meritorious decision D This job/chemical has the potential to give rise to a differential and elevated risks for women in juxtaposition to their male counterparts E This job/chemical has the potential to act as a teratogen via the female parent alone (e.g. some contaminants are teratogenic in both sexes) F This job has the potential to affect an unborn child whilst in utero via maternal systemic absorption Annex III, which was provided separately to the ministry, includes analysis of all job restrictions listed in the Resolution 170. A range of scientific literature was reviewed and considered to evaluate whether (i) industries, (ii) processes, (iii) job titles or (iv) chemicals had any robust evidence supportive of the view that women should not work in those industries, be involved with those processes be engaged with those job titles or be exposed to those substance hazards. The full range of hazards (Physical I – heat, noise/vibration, light, ionizing radiation, non-ionizing radiation (EMF)), Chemical (dusts/fibres, gases/vapors), Biological (viruses, bacteria, zoonoses, etc.), Psychosocial (stress, hours of work, shift work, night work, etc.) and Physical II (shock, position, posture, repetition, force, etc.) were considered. It is very important to state that the tenet of consideration had three (3) main perspectives in the review: i. Is there a direct effect from the work (industry/job/job title/chemical) on a woman’s health and wellbeing that is different and worse than that of a man undertaking the same activity? For 42 example, giving a Job Title the Category A does NOT mean that it is felt that the job is not hazardous to humans at all, it means that there is no evidence of a differential effect ii. Is there a negative impact on the woman’s reproductive system capable of negatively affecting the woman’s ability to conceive and on the viability of a child (e.g. teratogen – which is any agent that can disturb the development of an embryo or fetus; teratogens may cause a birth defect in the child or a teratogen may halt the pregnancy outright - the classes of teratogens include radiation, maternal infections, chemicals, and drugs)? iii. Is there a negative impact on the foetus during the period of pregnancy resultant from the woman’s’ work activity? A very risk adverse approach was taken – for example, when the literature stated that a number of scientific reports were negative for developmental impacts, but one was positive, then the Code letter F was still used. The converse to this, was where the impression was that the job had been included predicated against it being physically arduous – in such cases, where the job title gave a somewhat abstract description, then it was coded A. For some of the listings in Resolution 170, there was insufficient information to make an evidence-based decision – and these were classified as C. 43 Annex IV Examples of Roles Prohibited under Resolution 170 Field Job Description Location in Resolution 170 Roles perceived to pose a hazard/risk to women and unborn children Chemical production (Common “Methanol production - Managers, specialists Line 677 chemical production occupations - and workers engaged in technological sulphur Organic products production) treatment, natural gas reforming and methanol synthesis stages”. Line 677 Metal working/metal processing “Metal and alloy foundryman” Line 10 (Gas worker) Chemical production (Organic “Production of strong, highly- and moderately Line 731 products production) toxic plant protection agents - Managers, specialists and workers engaged in technological stages” Food industry - Mills, enterprises “Workers engaged in manual sieving of flour Line 997 on production of food mixtures wastes and their filling into bags and tares; from various feed, plants on Workers engaged in operations with toxic processing of hybrid and various chemicals at spraying of corn seeds” type corn seeds, elevators, grain receiving enterprises (receiving stations) and bases Food industry - Mills, enterprises “Workers engaged in performance of work on Line 1003 on production of food mixtures warehouses of toxic chemicals and drug- from various feed, plants on sprayed corn seeds” processing of hybrid and various type corn seeds, elevators, grain receiving Agriculture “Tractor operator of agricultural production Line 1121 working on tractors equipped with dusters and sprayers at operation with toxic chemicals” Roles perceived as being tough or arduous Food industry (Common food “Ice maker engaged in making ice in basins Line 897 production occupations) and bailing/packing” 44 Food industry (Meat production) “Meat boner” Line 913 Food industry (Fish extraction and “Manual drawing of throw nets” Line 932 processing) Occupations of workers, which are “Bulldozer operator” Line 1155 common for all branches of national economy Metal working/metal processing “Metal and alloy foundryman” Line 16 (Casting work) Lumbering operations “Lumberman engaged in tree cutting, tree Line 793 length bucking and longwood bunching, wood splitting, stump harvesting and cutting as well as wood harvesting using hand-held tools” Rubber processing (Common “Rubber-mixer operator” / “Vulcanizer Line 769 / 770 rubber compounds preparation and engaged in loading and unloading of items in processing occupations) boilers, vulcanization of propeller shafts” Metal working/metal processing “Heat treater on metal processing in plasma Line 67 (Forge-press and thermal work) and electric furnaces of reserve and uninterrupted operation (except for those engaged in automated processes)” Construction, assembly and “Erector of sanitary systems and equipment Line 137 construction and repair work engaged in sewage system repair” Roles perceived as carrying worksite responsibility Metal working/metal processing “Crane operator engaged in operation of Line 19 (Casting work) bridge crane” Ferrous metallurgy (Common “Crane operator in metallurgic production” Line 264 ferrous metallurgy occupations) Nonferrous metallurgy (Common “Crane operator engaged in unloading of Line 363 nonferrous metallurgy occupations) boiling agglomerate and its receiving on batch mixture (raw material) warehouse” Nonferrous metallurgy (Common “Crane operator engaged in copper and nickel Line 364 nonferrous metallurgy occupations) electrolysis shop”. 45 Nonferrous metallurgy “Crane operator engaged in copper and nickel Line 365 (Common nonferrous metallurgy occupations) melting” Chemical production (Carbamide “Crane operator engaged in control of brusher Line 673 resin production) on carbamide warehouse” Marine transport “Crane operator engaged in floating crane, Line 1069 crane maker and their assistants” Occupations of workers, which are “Crane operator engaged operations in shops Line 1156 common for all branches of national with harmful conditions” economy Occupations of workers, which are “Crane operator engaged in offshore Line 1157 common for all branches of national operations” economy – Line 1157 Occupations of workers, which are “Workers of engine crew of floating cranes”. Line 1160 common for all branches of national economy River transport “Loaders, dock workers-machine operators Line 1077 (except for those permanently working as crane operators, within-port transport drivers and workers engaged in servicing of long - run machines on processing of any loads except for those relating to 1st and 2nd hazard class)” River transport “Crane operator engaged in floating crane” Line 1080 46 Annex V Substances and factors known to affect female reproductive health (non-exhaustive) Pharmaceuticals ▪ Anaesthetic gases ▪ Nitrous oxide ▪ Diethylstilbestrol (DES) ▪ Antineoplastic agents Ionizing radiation Non-ionizing radiation ▪ Radiofrequency radiation Vitamin A Antiviral agents ▪ acyclovir, ▪ ganciclovir, ▪ ribavirin, and ▪ zidovudine Biological infectious agents ▪ Toxoplasmosis, ▪ Listeriosis, ▪ Rubella, ▪ Herpes, ▪ Varicella, ▪ Hepatitis B and C, ▪ Cytomegalovirus, ▪ Human parvovirus B19, and ▪ Human immunodeficiency virus. Shift-work and Hours of work 47 Further reading Brouwers, M.M., van Tongeren, M., Hirst, A.A., Bretveld, R.W., Roeleveld, N., 'Occupational exposure to potential endocrine disruptors: further development of a job exposure matrix', Occup Environ Med., Vol. 66, 2009 pp. 607-614. Available at: [1] EU-OSHA – European Agency for Safety and Health at Work, ‘An introduction to dangerous substances in the workplace’, Facts No 33, 2003. Available at: [2] EU-OSHA – European Agency for Safety and Health at Work, ‘Communicating information about dangerous substances’, Facts No 35, 2003b, pp. 2. Available at: [3] EU-OSHA – European Agency for Safety and Health at Work, Research, 'Gender issues in safety and health at work — A review', 2003, Available at: [4] EU-OSHA – European Agency for Safety and Health at Work, ‘OSH in figures: Young workers — Facts and figures', European Risk Observatory Report 4, 2007. Available at: [5] Frazier, L.M. & Hage, M.L., Reproductive hazards of the workplace, John Wiley Sons, Inc., New York, 1998. ILO – International Labor Organization, Your health and safety at work, Male and female reproductive health hazards in the workplace, 1998. Available at: [6] NIOSH – National Institute for Occupational Safety and Health, The Effects of Workplace Hazards on Female Reproductive Health, DHHS (NIOSH) Publication No 99-104, 1999, pp. 20. Available at: [7] NIOSH – National Institute for Occupational Safety and Health, The Effects of Workplace Hazards on Male Reproductive Health, DHHS (NIOSH) Publication No 96-132, 1999, Available at: [8] 48