Training Outline

7.4 Standard Lecture: Administrative Enforcement Institutions (1 hour)

• Explain that some of the risks and disadvantages associated with court procedures can be reduced by making available administrative enforcement procedures to workers who consider that their right to non-discrimination has been violated. Review the most common types of enforcement agencies that were already detailed in Transparency 116 (such as Ombudsman institution and/or a Human Rights, Equal Opportunities or Disability Commission).

  Using Transparency 124, review the types of procedures these bodies usually have in common: there are no costs involved for the parties; legal representation is not required; and the decisions of these bodies are non-binding. Explain that as a result, the procedures before these bodies often have a less formal character and there is a greater degree of co-operation on the part of the employer and other parties.

  Make sure that participants understand how the fact that the decisions of Ombudsman institutions and the commissions are legally non-binding does not mean that they lack legal relevance. On the contrary, these bodies have been established in view of the specialist expertise required in the respective fields. This arrangement implies that the decisions of these expert bodies are influential, with the expectation that they will be followed by the parties, and that weight is attached to them by courts during court proceedings.

• The Ombudsman Institution
  Referring to section 7.4.1 of the Primer, and using Transparency 125, describe the process by which an Ombudsman Institution might investigate a complaint. Explain that when investigating a complaint, Ombudsman Institutions can use human rights law, international labour law, and non-discrimination law as a baseline against which to measure behaviour, although their mandate is usually not confined to these sources of law. They hold hearings using an informal and conciliatory approach. The results of their investigations are commonly published and sent to both parties, and if appropriate, contain recommendations for the improvement of behaviour. The authority and possibly the effectiveness of an order from the Ombudsman will depend on the precise mandate.

  Referencing the examples on page 77 of the Primer, explain that the precise mandate of the Ombudsman Institutions differs, both within and between countries. In some countries, such as Sweden, there are specialized Ombudsman Institutions for various grounds of discrimination. In others, such as the Netherlands, there is a single National Ombudsman with a broad mandate with respect to State acts and omissions.

  “In Norway, the Equality Ombudsman has permanent administrative responsibility for the promotion of equal rights and opportunities, and for monitoring compliance with the Equal Status Act. The Office may receive complaints, issue recommendations (and, exceptionally, orders) and take a case to the Equal Rights Board, which has limited authority to make orders (none at all in matters of hiring and firing). One clear advantage of this system is that an employee who makes use of it incurs no costs.”

  “In Finland, there is a similar system, with the difference that, at the initiative of the Equality Ombudsman, the Equality Council may issue an injunction to stop discriminatory behaviour in violation of the Equality Act, No. 609 of 1986.”

• A Human Rights, Equal Opportunity or Disability Commission Explain that in various countries, Human Rights Commissions, Equal Opportunity Commissions and Disabilities Commissions have been established to promote and protect human rights, equal treatment law and the rights of people with disabilities. These bodies are sometimes empowered to receive individual complaints, both against public and private persons and bodies. The adjudication of individual complaints is usually just one – though arguably the most important one – of the many tasks assigned to such bodies.

  Referring to section 7.4.2 of the Primer, and using Transparency 126, describe the process by which these commissions commonly have a very broad mandate to promote and protect the respective bodies of laws. Emphasize that in view of this, these bodies frequently have the task of starting investigations on their own initiative, conducting independent surveys on human rights compliance/ equal opportunity/ the rights of people with disabilities, publishing independent reports and making recommendations on issues falling within the realm of their mandates, and providing assistance to victims of human rights/ non-discrimination law/ disability law violations such as public information campaigns, referral for legal advocacy and support, etc. Some statutes require employers to lodge reports with such commissions on their efforts to implement the law.

  Conclude this subsection by highlighting the example from Australia provided on page 78 of the Primer.

  “In Australia, the tasks referenced in Transparency 126 are performed by a single body: the Human Rights and Equal Opportunity Commission that is composed of a President and four separate Commissioners – Sex, Disability, Human Rights, and Indigenous Peoples. There seems to be an international trend, for reasons of efficiency, of bringing together the knowledge and expertise of the various specialist bodies in a single human rights and equal treatment commission.”