CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Iraq (RATIFICATION: 1959)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) and (b) of the Convention. Legislation. Prohibited grounds of discrimination. The Committee notes that, under Labour Law No. 37/2015 which entered into force in February 2016, direct discrimination is prohibited on the basis of “race, colour, sex, religion, religious community, opinion or political belief, origin and national extraction” (section 1(25)) and “indirect discrimination” on the basis of “nationality, age or health condition, economic or social condition, affiliation to a trade union, and trade union activity” (section 1(26)). The Committee welcomes the inclusion in the new Labour Law of these prohibited grounds of discrimination. However, it would like to point out that where legal provisions are adopted in order to give effect to the Convention, they should at least include all the grounds of discrimination laid down in Article 1(1)(a) of the Convention, namely sex, race, colour, religion, political opinion, national extraction and social origin. The Committee recalls that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, and differs from “nationality”. With respect to “social origin”, the Committee also recalls that the lack of equal opportunities based on this ground refers to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs (see General Survey of 2012 on the fundamental Conventions, paragraphs 764, 802 and 853). The Committee asks the Government to clarify the meaning of the term “origin” and the expression “national extraction” referred to in section 1(25), specifying whether “origin” covers the concept of “social origin” as described above.

Definition of direct and indirect discrimination. The Committee observes that the definitions of direct and indirect discrimination in section 1(25) and (26) of the new Labour Law do not fully reflect the definition of discrimination set out in Article 1(1)(a) and (b) of the Convention. In this regard, the Committee recalls that the Convention defines discrimination as “any distinction, exclusion or preference made on the basis of [certain grounds], which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”. Through this broad definition, the Convention covers all discrimination that may affect equality of opportunity and treatment. Any discrimination – in law or in practice, direct or indirect – falls within its scope. Direct discrimination occurs when less favourable treatment is explicitly or implicitly based on one or more prohibited grounds whereas indirect discrimination refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. Indirect discrimination occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of certain grounds such as race, colour, sex or religion (see General Survey of 2012, paragraphs 743–745). Recalling that clear and comprehensive definitions of what constitute direct and indirect discrimination in employment and occupation are essential in identifying and addressing the many ways in which discrimination may occur, the Committee asks the Government to consider amending the definitions of direct and indirect discrimination in section 1(25) and (26), in accordance with the Convention.

Discrimination based on sex. Sexual harassment. Noting that section 10 of the new Labour Law defines and prohibits sexual harassment in employment and occupation, the Committee once again asks the Government to provide information on the practical measures taken to prevent and address sexual harassment in employment and occupation, for example; helplines, legal assistance or support units to assist victims of sexual harassment, procedures for bringing forward complaints of sexual harassment, training for workers’ and employers’ organizations and labour inspectors and for other enforcement officials.

Discrimination based on race, colour, religion and national extraction. Ethnic and religious minorities. The Committee notes from the report of the United Nations Special Rapporteur on minority issues on her mission to Iraq (27 February–7 March 2016) that ethnic and religious “minorities have long faced discrimination and exclusion from certain labour markets, including employment in government and public sector posts” and “such exclusion must be addressed, including through implementation of affirmative action policies where necessary, to ensure that Iraqi institutions better reflect the diversity within society”. The Committee also notes from this report that a draft diversity protection and anti-discrimination bill and a draft law on the protection of religious and ethnic minority group rights were under consideration by the Government (A/HRC/34/53/Add. 1, 9 January 2017, paragraphs 18 and 75). The Committee asks the Government to provide information on any practical measures taken to address discrimination faced by ethnic and religious minorities in employment and occupation, including affirmative action and awareness-raising measures, and on any legislative developments concerning the two draft laws relevant to the rights of minorities.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes that, in its concluding observations, the Committee on the Elimination of Discrimination against Women (CEDAW) notes with concern the very low participation of women in the formal labour sector, in particular in the private sector where only 2 per cent of the total number of employees are women, most of whom are employed in low-paid and low-skilled jobs. The CEDAW is also concerned at the prevalence of customs and traditional practices that limit the degree of involvement of rural women in the development programmes and their access to credit and which prevent them from inheriting or acquiring land and other properties (CEDAW/C/IRQ/CO/4-6, 10 March 2014, paragraphs 40 and 44). The Committee asks the Government to provide information on any policies and measures adopted for the promotion of gender equality in employment and occupation. The Committee also asks the Government to provide information on any steps taken or envisaged to improve women’s access to education and training, as well as to an increased number, and wider range, of jobs and occupations, including by ensuring that they have equal access to land, credit and loans, and the goods and services necessary for carrying out their occupations and by addressing gender stereotypes. The Government is asked to provide specific information on any steps taken to increase the access of rural women to income-generating opportunities.

Article 5. Special measures of protection for women. The Committee notes the Government’s indication that Resolution No. 480 of 1989 prohibiting women from working in certain occupations and Resolution No. 76 of 1993 were both repealed by Resolution No. 12 of 2001. It further notes that sections 84–94 of Labour Law No. 37/2015 contain provisions protecting not only pregnant and nursing women but also women in general. In particular, it notes that section 85(2) prohibits the recruitment of women to perform arduous or harmful work specified in regulations to be issued under section 67(3), and section 86(1) prohibits the employment of women at night. The Committee also notes that sections 86(2) and 92(1) provide for special rest periods for women and, in accordance with section 92(2), nurseries must be set up by the employer in enterprises where women are employed. While understanding that these measures are aimed at protecting women, the Committee recalls that protective measures applicable to women’s employment should be limited to the protection of maternity and should not constitute obstacles to the recruitment of women. It further recalls that measures which are based on stereotypes regarding women’s professional abilities and role in society, violate the principle of equality of opportunity and treatment between men and women in employment and occupation. In addition, the Committee considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. With a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures are necessary to ensure that women can access these types of employment on an equal footing with men, such as improved health protection of both men and women, adequate transportation and security, as well as social services (see General Survey of 2012, paragraph 840). The Committee asks the Government to take concrete steps to review the provisions of Labour Law No. 37/2015 in light of the principle of equality between men and women workers, so that any protective measures regarding women’s employment are strictly limited to maternity protection and the provisions relating to additional rest periods or the establishment of nurseries apply to the employment of both men and women with family responsibilities on an equal footing. Please provide information on any progress made towards this end. The Committee also asks the Government to provide a copy of Resolution No. 12 of 2001 and any regulations issued under section 67(3) of the Labour Law.

Statistics. Since once again data was not attached to the Government’s report, the Committee asks the Government to provide recent statistical information identifying the rates of participation of men and women in the various occupations and sectors of activity in the private and public sectors, and of persons belonging to ethnic or religious minorities, in order to assess the impact of the measures taken by the competent authorities to implement the Convention.