CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Belgium (RATIFICATION: 1977)

Other comments on C111

Observation

Direct Request

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The Committee notes the joint observations submitted on 1 September 2022 by the General Confederation of Liberal Trade Unions of Belgium (CGSLB), the Confederation of Christian Trade Unions (CSC) and the General Labour Federation of Belgium (FGTB).

Articles 1 to 3 of the Convention. Federal anti-discrimination legislation. The Committee notes the indication in the Government's report that a number of the 33 recommendations made in the first report (2017) of the Committee to Evaluate Federal Anti-Discrimination Legislation (hereinafter “Evaluation Committee”) have been implemented, such as: (a) the establishment of the Federal Institute for Human Rights; (b) the adoption of the Act of 1 April 2022 amending the Social Penal Code to facilitate the use by social inspectors of discrimination tests by posing as a potential client or job applicant (the so-called “mystery shopping” procedure introduced by section 32 of the Act of 15 January 2018 containing various provisions on employment); (c) the adoption of the Royal Decree of 11 February 2019 establishing the conditions for affirmative action (see the Committee's comments below). In this regard, the Committee notes that the European Commission against Racism and Intolerance (ECRI) of the Council of Europe published, on 20 September 2022, conclusions on the implementation of its priority recommendations made in respect of Belgium in 2020. Noting that no combined evaluation of the federal and federated legal frameworks was initiated to prevent any gaps or inconsistencies, the ECRI encouraged the authorities to make every effort to ensure that a such an evaluation of the various legal frameworks was carried out without delay. In this regard, it echoed the findings of the Evaluation Committee, which emphasized, in its 2017 report, that all the anti-discrimination legislative instruments adopted, both at federal level and by the Regions and Communities, constituted a package that it would be appropriate to subject to an overall evaluation. The Committee notes the publication in June 2022 of the final report of the Evaluation Committee which now contains 73 recommendations aimed at: (a) improving data collection mechanisms; (b) improving the accessibility, consistency and clarity of the legal framework; (c) improving access to civil justice for victims of discrimination; (d) strengthening the role of the labour tribunal, the labour inspectorate and equality bodies in the processes of identifying and sanctioning discrimination; (e) improving the implementation of penal mechanisms to combat discrimination, hate speech and hate crime; and (f) developing preventive and proactive measures. In their observations, the CGSLB, CSC and FGTB emphasize three recommendations that they deem worthy of special attention: (a) the introduction, for public employers and large private enterprises, of a legal requirement to give reasons for selection, promotion and dismissal decisions internally, and to keep such reasons on file to make them accessible to social inspectors (recommendation No. 44); (b) the inclusion in anti-discrimination legislation of provisions establishing a system to prevent discrimination in employment relations, which should include a requirement for public and private employers to carry out a discrimination risk analysis, to draw up a prevention plan and to set up an internal complaints or reporting procedure (recommendation No. 62); and (c) the provision of technical improvements and greater visibility for affirmative action plans (recommendation No. 69). The Committee requests the Government to continue providing information on follow-up to the recommendations made by the Committee to Evaluate Federal Anti-Discrimination Legislation and on any measures taken or envisaged to carry out an overall evaluation of legislation at federal, Regional and Community level.

Article 1(1)(a). Discrimination on the basis of race, colour and national extraction. The Committee notes that, according to the 2020 annual report of the Interfederal Center for Equal Opportunities (Unia), 27.3 per cent of the 603 new employment-related cases concerned so-called “racial” criteria (perceived race, skin colour, extraction, nationality and national or ethnic origin). It also notes the Government's indication that the fourth edition of the report entitled “Socio-economic monitoring: labour market and origin”, published in 2019 by the Federal Public Service (FPS) for Employment, Labour and Social Dialogue and Unia, shows that discrimination remains systemic in the Belgian labour market. Despite a slight improvement in this regard, a person's origin remains an obstacle in the market: 46.5 per cent of persons of North African origin are in employment compared with 73.7 per cent of people of Belgian origin; and young people of foreign origin find work much less quickly than their peers of Belgian origin. According to the Government, the COVID-19 pandemic exacerbated this phenomenon from 2020 onwards, as migrant workers and workers of immigrant origin are over-represented in the occupations most affected by the pandemic (e.g., hospitality and construction) and, together with young people, are more likely to be on so-called “temporary” contracts (temporary work, fixed-term contracts, student and seasonal work). Finally, the Committee notes the concerns expressed by the United Nations Committee on the Elimination of Racial Discrimination (CERD) in its concluding observations, regarding the discrimination and many obstacles to entering the labour market faced by Roma (in particular women), people of African descent (who often face multiple discrimination based on their race, colour, sex, sexual orientation and religious beliefs), and nationals of countries outside the European Union (CERD/C/BEL/CO/20-22, 21 May 2021, paras 24 to 27). The Committee requests the Government to provide information on:

(i)any specific measures taken to combat discrimination on the grounds of race, colour or national extraction, including through awareness-raising campaigns aimed at workers and employers; and
(ii)the specific situation of Roma, people of African descent and workers from countries outside the EU in employment and occupation.

Discrimination on the basis of sex and/or gender. Sexism. Harassment based on sex. Sexual harassment. The Committee notes that in 2020 the Institute for the Equality of Women and Men (IEFH) received 350 reports concerning work situations: 58 per cent of them were concerned with sex-based discrimination (including questions relating to transgender persons). It also notes the publication, by the IEFH in 2021, of the results of the “#Youtoo?” national survey on sexual harassment in the workplace, which reveals that 9 per cent of women and 4 per cent of men have been victims of such harassment. Also noting the court decisions handed down in this area mentioned in the Government’s report, the Committee emphasizes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations adopted in 2022, expressed concern at the low number of cases of sexual harassment in the workplace investigated and where penalties were imposed (CEDAW/C/BEL/CO/8, 31 October 2022, para. 43). Noting that one third of reports in the area of employment are concerned with access to employment, the Committee welcomes the publication, by the IEFH in 2020, of two information brochures on “non-discriminatory access to employment for men and women”, providing practical information and advice for male and female job applicants, on the one hand, and for employers, on the other hand. The Committee requests the Government to provide information on:

(i)any measures adopted at the national, regional and enterprise levels to tackle discrimination based on sex and/or gender, harassment based on sex, and sexual harassment in employment and occupation, with an indication of the extent to which workers’ and employers’ organizations participate in the formulation and implementation of these measures; and
(ii)any complaints or cases of sexual harassment in the workplace handled by the IEFH, the labour inspectorate or the judicial authorities, and the outcome of these complaints.

Discrimination on the basis of sex and religion. The Committee notes that Unia and Myria (Federal Migration Centre), in their “parallel report” submitted to CEDAW in 2022, indicate that specific violence suffered by Muslim women is still insufficiently documented but that, according to an analysis of the reports received during the 2017–20 period, 90 per cent of victims of discrimination based on stereotypes linked to religion are Muslim and 76 per cent are women. According to the report, the rules regarding the wearing of religious symbols mainly affect Muslim women in the employment market and in education. The Committee also notes the concern expressed by the United Nations Human Rights Committee regarding the prohibition against the wearing of religious symbols at work, in certain public bodies, and by teachers and students at public schools (CCPR/C/BEL/CO/6, 6 December 2019, para. 17). The Committee requests the Government to remain alert to the potential discriminatory effects of the Act of 1 June 2011 (prohibiting the wearing in public places of any clothing which completely or mostly conceals the face) on the access and retention of Muslim women in the labour market and on the impact of the prohibition on the wearing of religious symbols in certain education institutions, and to provide information in this regard.

Articles 2 and 3. Promotion of gender equality in employment and occupation. Occupational segregation. The Committee notes the information provided by the Government in its report and in the report on the Equal Remuneration Convention, 1951 (No. 100), regarding the measures taken in the Regions and Communities to combat occupational segregation and gender-based stereotypes in education, training and vocational guidance. It also notes that in 2019 the IEFH reviewed the Act of 28 July 2011 aimed at guaranteeing at least a one-third presence for each sex on the boards of autonomous public enterprises (EPAs), the National Lottery and private enterprises listed on the stock exchange: between 2008 and 2017, the proportion of women on boards of directors in all surveyed enterprises rose from 8.2 to 26.8 per cent. In its “Report on the gender pay gap in Belgium” published in 2021, the IEFH recommends tackling “segregation at its root” by combating gender stereotypes from early childhood and then during training, vocational guidance and access to employment. As regards equal access to training, the CGSLB, CSC and FGTB emphasize that the right to paid educational leave (CEP), the aim of which is to enable men and women workers to undergo training during working hours while maintaining remuneration up to a certain ceiling, is mainly exercised by men (80 per cent in French-speaking areas and 63 per cent in Flemish areas). According to these trade unions, women are excluded de facto, probably because the CEP scheme is less accessible for persons working on a part-time basis. Lastly, the Committee notes that CEDAW expressed concern at the persistent gender segregation at all levels of education and the continued under-representation of women and girls in non-traditional fields of study and career paths, and also at the low number of women in high-level academic posts (CEDAW/C/BEL/CO/8, paragraph 41). The Committee requests the Government to continue providing information, including statistical data, on the measures taken and the results achieved regarding:

(i)the representation of women in posts of responsibility in both the public and private sectors;
(ii)their rate of employment in all economic sectors and occupations, particularly those in which they are under-represented; and
(iii)the participation rate of girls and women in a wider range of training programmes, including vocational training programmes, to enable them to access jobs that offer greater possibilities of progression and promotion.

Gender mainstreaming in public policy. Promotion of gender equality in public procurement. The Committee notes the adoption of a new federal action plan on gender mainstreaming (2020–24) and notes that it sets out the federal policies that will be prioritized for gender mainstreaming, including: the right to training; improving workers’ wellbeing; combating work-related psychosocial problems; work-life balance; reforming leave schemes for parents; reintegration into an inclusive labour market; part-time work; remote working; monitoring diversity and discrimination at the sectoral level; recruitment, selection and mobility procedures within the public service; public procurement rules in light of corporate social responsibility; access to justice; and basic and continuous training for judges and judicial staff. The Committee requests the Government to provide information on gender mainstreaming in public policy, including on the action plan, particularly with regard to employment and awarding public contracts, specifying whether impact assessments have been undertaken and, if so, providing an indication of their outcomes.

Article 3(a). Collaboration with the social partners. Collective agreements. The Committee notes the Government’s indications that the social partners, through the joint committees and the collective labour agreements that they adopt, contribute to the fight against discrimination and to the implementation of diversity and equality policies at the interprofessional, sectoral and enterprise levels. The Committee also notes that, in 2018, the Government and the federated entities launched a new inter-federal action plan to combat discrimination and violence against LGBTI persons. In December 2018, the Minister for Employment asked the joint committees to prepare charters for their sectors to combat discrimination and for these charters to explicitly provide for action against homophobic and transphobic violence. The Government indicates that as of September 2020, some 17 committees covering around 20 per cent of workers had responded positively. The Committee also recalls that it had requested the Government to provide information on the desired amendments to collective agreement No. 95 in order to prevent discrimination on all of the grounds set out in the Convention, including religion and social origin. The Committee requests the Government to continue to provide information on:

(i)the activities of the National Labour Council to promote non-discrimination and equality, including with regard to the possibility of amending collective agreement No. 95 to cover discrimination on all the grounds set out in the Convention and at all stages of employment;
(ii)the concrete action taken by employers’ and workers’ organizations, particularly awareness-raising measures, to combat discrimination and promote equality in occupation and employment, without distinction on the basis of race, colour, sex, religion, political opinion, national extraction or social origin; and
(iii)the action undertaken in collaboration with the social partners as part of the inter-federal action plan to combat discrimination and violence against LGBTI persons.

Article 5(2). Affirmative action measures. The Committee notes with interest the adoption of the Royal Decree of 11 February 2019 setting the conditions for the affirmative action, which it had called for in its previous comment. The Committee notes that the Decree sets strict conditions for the implementation of an affirmative action plan, namely: (a) the presence of clear inequality related to a protected criterion; (b) a well-defined objective; (c) a temporary duration (of a maximum of three years); (d) the proportionality of the measures with respect to their objective; and (e) the guarantee that the affirmative action measure does not unnecessarily restrict the rights of others. The Committee also notes that the Decree is only applicable to the private sector. The affirmative action plan must be established through a collective labour agreement or by an act of accession fixing the conditions for the affirmative action and is submitted for approval to the Minister of Labour. The Committee requests the Government to provide information on:

(i)the affirmative action plans, or any other measures that aim to ensure full equality in employment and occupation, that have been implemented and their results; and
(ii)any provisions that might allow for the adoption of similar measures in the public sector.

Enforcement of anti-discrimination legislation. Labour inspection. The Committee notes with interest the creation, in the social legislation supervisory body (CLS) of the labour inspectorate, of a team of labour inspectors specialized in investigations in cases of discrimination. The Committee notes the Government’s indication that the CLS has developed a fluid and fruitful partnership with Unia and the IEFH. It highlights the recommendations of the Evaluation Committee, in its final report published in June 2022, in particular: to strengthen efforts to provide training to judges and to the police and the labour inspection services; and to develop methods for identifying signs of discrimination in a case under examination and “warning signals” indicative of potentially discriminatory practices in enterprises and government departments. The Committee requests the Government to provide information on:

(i)the action taken on the recommendations made by the Committee to Evaluate Federal Anti-Discrimination Legislation concerning the enforcement by the labour inspectorate of anti-discrimination legislation; and
(ii)any anti-discrimination training provided to labour inspectors, judges and any other competent authority.

Bodies specialized in discrimination. The Committee welcomes the adoption of Act No. 2019012931 of 12 May 2019 establishing a Federal Institute for the Protection and Promotion of Human Rights and the Government’s indication that this constitutes a first step towards a national human rights institute such as that recommended by the Evaluation Committee in its report of 2017. However, the Committee notes the decision of the Flemish Government to withdraw in 2023 from the cooperation agreement on the establishment and operation of Unia and to establish its own anti-discrimination institution in Flanders. In this regard, it notes that the United Nations Committee for the Elimination of Racial Discrimination (CERD), in its concluding observations of May 2021, expressed its concern at this decision and recommended that the Government ensure the consolidation and strengthening of the work of Unia as an inter-federal institution that combats discrimination (CERD/C/BEL/CO/20-22, 21 May 2021, paras 9 and 10). The Committee also notes: (a) the concerns expressed, both by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights of the United Nations, with regard to coordination between the different national institutions for the promotion and protection of human rights, including the fight against discrimination (CCPR/C/BEL/CO/6, paras 9 and 10; and E/C.12/BEL/CO/5, 26 March 2020, paras 7 and 8); and (b) the recommendation (No. 18) of the Evaluation Committee, in its report of 2022, concerning the necessary cooperation between Unia, IEFH and the future Flemish institution to allow individuals to receive the assistance that they need, including access to judicial procedures, without being hindered by the existence of multiple bodies. In this regard, the Committee emphasizes the importance of a clear and easily accessible legislative and regulatory framework to ensure effective protection against discrimination and offer support and easily identifiable remedies to potential victims so that they can obtain prompt redress. The Committee requests the Government to provide information on the steps taken to ensure effective coordination between the different entities responsible, at both federal and state levels, with regard to discrimination in employment and occupation.