CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Montenegro (RATIFICATION: 2006)

Other comments on C111

Observation

2013

Direct Request

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Articles 1 and 2 of the Convention. Legislation. The Committee previously noted the various legislative amendments to the Law on Gender Equality of 2007 and the Law on the Prohibition of Discrimination of 2010 (amended in 2014 and 2017). In this regard, the Committee notes the Government’s indication, in its report, that the amendments to the Law on Gender Equality 2007 extended the scope of sanctions concerning gender discrimination and violations of the principle of equal treatment of men and women in certain areas of life, including discrimination against women due to pregnancy. The Government indicates that in 2018, 146 cases were completed and nine were transferred to 2019, but the Committee notes that no detail is given concerning to number of cases dealing specifically with discrimination in employment and occupation nor on the findings of the courts and the sanctions imposed. Further, the, the Committee takes notes of the information provided by the Government, in its report, on the application in practice of the legislation, including on the number of cases examined by the courts in 2017 and 2018. However, the Committee notes, from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), that despite the solid legislative framework in place, concerns remain about the limited impact of the legislation which may point to a lack of implementation and of the political will to prioritize gender equality and non-discrimination, as well as to the inadequacy of the capacity-building conducted on gender equality and on the prohibition of discrimination on the basis of sex. The CEDAW also expresses concern about the small number of complaints about discrimination on the basis of sex or gender filed with the Protector of Human Rights and Freedoms and the absence of any such complaints filed with the Supreme Court (CEDAW/C/MNE/CO/2, 24 July 2017, paragraph 10). The Committee asks the Government to step up its efforts in ensuring the full implementation of the legislative framework on the prohibition of discrimination, especially with regard to women’s right to non-discrimination in employment and occupation, and to provide information on the measures taken in this regard.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee recalls that the Law on the Prohibition of Discrimination of 2010 (section 7(2)), the Law on Gender Equality of 2007 (section 7(8)) and the Labour Act of 2008 (section 8(3)) all provide different definitions of sexual harassment. The Committee asked the Government to examine the possibility of harmonizing these definitions. It notes the Government’s indication that, in cooperation with the ILO, it has been working on a draft Labour Law defining and prohibiting sexual harassment at work and in all areas of employment. The Committee notes the adoption and enactment of the new Labour Law in January 2020, and notes that section 10(1) prohibits sexual harassment at work and in relation to work “regarding all aspects of employment, i.e. recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship”. Section 10(3) defines sexual harassment as constituting “any unwanted verbal, non-verbal or physical conduct of a sexual nature intended to or actually undermining the dignity of a person seeking employment, as well as an employed person, particularly when such behavior causes fear or creates a hostile, humiliating, intimidating, degrading or offensive environment”. The Committee notes with regret that while section 10(3) defines hostile work environment sexual harassment, the definition does not include explicitly quid pro quo sexual harassment, that is cases where a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job. Further, the Government indicates that no motions concerning sexual harassment were submitted to the Agency for the Peaceful Resolution of Labour Disputes. With regard to court cases, the Government reports on only one case of mobbing in relation to sexual harassment, and informs the Committee that mobbing is the only type of dispute categorized when registering court cases in the information system. The Government states that a review of the judicial information system is underway and, once completed, data on the number of cases regarding sexual harassment will be available. The Committee asks the Government to: (i) consider amending the new Labour Law to also define and prohibit explicitly quid pro quo sexual harassment; (ii) indicate whether section 7(2) of the Law on the Prohibition of Discrimination of 2010 and section 7(8) of the Law on Gender Equality of 2007 are still in force; and (iii) consider harmonizing the definitions of sexual harassment throughout its legislative framework. The Committee also reiterates its request to the Government to: (i) report on steps taken at the national level to actively prevent and address sexual harassment at work, including any awareness-raising activities; and (ii) provide information on any cooperation with workers’ and employers’ organizations in this regard. Finally, welcoming the Government’s initiative to modernize the judicial information system, the Committee hopes that the Government will soon be in a position to provide more detailed information on the number and nature of cases brought to the attention of the competent authorities relating to sexual harassment, and their outcome.

Article 1(2). Inherent requirements of the job. The Committee recalls that section 2 of the Law on the Prohibition of Discrimination of 2010, as amended, allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the act, action, or omission are objectively and reasonably justified by a legitimate purpose. The Committee notes the Government’s indication that a new section 2(a) was introduced to the Law on the Prohibition of Discrimination of 2010, which provides for exceptions to the general prohibition of direct and indirect discrimination in certain circumstances, detailed in subparagraphs (1) to (7). In subparagraph (1), it will not be considered discrimination “when such a treatment is prescribed by the law in order to preserve health, safety of citizens, maintain public order and peace, prevent criminal offences and protect rights and freedoms of others, if the used means are appropriate and necessary to achieve some of those objectives in a democratic society and are proportionate to the objective that should be achieved with such measures”. Subparagraph (7) considered that a difference made “on the grounds of citizenship in accordance with special regulations” does not amount to discrimination. Section 2(a) specifies that for subparagraphs (1) and (7), treatment not be deemed to be discrimination, “shall be determined in proportion to the objective and purpose for which they are determined, if the means for achieving that objective are proportionate and necessary”. The Committee notes, that the new section 2(a) of the Law on the Prohibition of Discrimination of 2010 did not introduce significant changes from the previous provision. The Committee therefore once again recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and that any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). Therefore, in order to assess whether Article 1(2) of the Convention is applied in a restrictive manner, the Committee once again asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2(a) of the Law on the Prohibition of Discrimination of 2010, as amended, such as examples of cases in which these exceptions have been used.

Article 2. Equality of opportunity for men and women. In its previous comment, the Committee requested detailed information on the concrete steps taken within the framework of the Action Plan on Gender Equality (2017–21) and on the activities of the new National Gender Equality Council. It also asked the Government to provide information on the implementation of the Strategy for the Development of Women’s Entrepreneurship, and on the progress made. According to the Government, an analysis of the implementation of the Action Plan on Gender Equality 2017–21 shows that about 70 per cent of the planned measures have been implemented fully or continuously, which indicates that there is a positive trend in the implementation of gender equality policies. The Committee notes the Government acknowledgement that, although institutional mechanisms for gender equality in Montenegro have been improved in the last five years: (1) women continue to face various forms of discrimination in the political, social and economic spheres; and (2) there is still a small number of complaints on discrimination based on sex and gender despite the solid legislative framework of Montenegro for the elimination of discrimination against women. In addition, the Government states that municipalities do not have enough resources to establish their own structures to adopt and effectively implement local plans for achieving gender equality. In light of the above, the Committee wishes to recall the importance of regularly monitoring and assessing the results achieved within the framework of the national equality policy with a view to reviewing and adjusting existing measures and strategies and identifying any need for greater coordination between measures and strategies and between competent bodies in order to streamline interventions. The Committee asks the Government to: (i) continue its efforts in the implementation of the Action Plan on Gender Equality (2017–21) and the Strategy for the Development of Women’s Entrepreneurship; and (ii) provide information on the steps taken to this end. It also asks the Government to undertake an evaluation of the impact of the measures, taken under both the Action Plan and the Strategy, to improve women’s equal access to employment and occupation. Noting that the Government has not provided information in this regard, the Committee once again asks the Government to provide information on the activities of the National Gender Equality Council.

Articles 2 and 3. Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that according to the Government, Roma and Egyptian people went from representing 3.5 per cent of the unemployed in 2016, to 1.9 per cent in 2018. The Committee takes notes of the detailed Action Plan for the implementation of the Strategy for the social inclusion of Roma and Egyptians in Montenegro, including the appointment of associates, to act as mediators in the communities, to foster better awareness of these populations on their right to work, and the importance and manner of registering for unemployment. The Committee notes, however, from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, that Roma and Egyptians are over-represented in informal employment and unskilled jobs, and their attendance rate in preschool, primary and secondary education remain low compared to the rest of the population (CERD/C/MNE/CO/4-6, 19 September 2018, paragraphs 14 and 16). The Committee asks the Government to: (i) continue its efforts in ensuring that Roma and Egyptians enjoy equal opportunities in all aspects of employment and occupation; and (ii) undertake an evaluation of the impact of the measures taken under the Strategy for social inclusion of Roma and Egyptians in Montenegro for the period 2016–20, in the labour market for Roma and Egyptian men and women, and to provide information to this end. Noting that the Government has not replied to its request in this regard, the Committee once again asks it to provide information on the application in practice of section 17 of the Law on the Prohibition of Discrimination of 2010, as amended, including on any cases brought before the competent authorities involving the Roma and Egyptian populations.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 5. Special measures. Restrictions on women’s employment. The Committee recalls that, for a number of years, it had been drawing the Government’s attention to the fact that section 104 of Labour Law No. 49/08, which provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have a detrimental effect on and an increased risk for [her] health and life”, may give rise to violations of the principle of equality of opportunity and treatment. The Committee notes with interest that the new Labour Law has removed this restriction on women’s employment.

Enforcement. The Committee notes the information provided by the Government on the cases registered by the labour inspectorate between 2016 and 2019. It notes the low number of cases regarding discrimination and recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the 2012 General Survey on the fundamental Conventions, paragraphs 870 and 871). The Committee therefore encourages the Government to raise awareness of the relevant legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination. It also asks the Government to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Committee further asks the Government to continue providing information on the number and nature of complaints which relate specifically to discrimination based on the grounds set out in the national legislation, the sanctions imposed and the remedies provided.