CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Mauritius (RATIFICATION: 2002)

Other comments on C111

Observation

Direct Request

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Article 1(1) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee previously noted that, while the Employment Rights Act (ERiA) of 2008 covers all the grounds of discrimination prohibited by the Convention, the Equal Opportunities Act (EOA) of 2008 does not explicitly prohibit direct and indirect discrimination on the basis of “national extraction” and “social origin” enumerated in Article 1(1)(a) of the Convention, although it covers “caste” which is a component of “social origin” and “place of origin”. The Committee however notes from the report published by the Equal Opportunities Commission (EOC) in 2014 that while “place of origin” is not defined under the national legislation, it seems to refer only to geographical origin, which is more restrictive than the meaning of the ground of “national extraction” referred to in the Convention. Noting the Government’s indication that this issue is a matter of policy decision, the Committee requests the Government to take the necessary steps to harmonize the prohibited grounds of discrimination enumerated in the Equal Opportunities Act with those of the Employment Rights Act so as to ensure consistency in its non-discrimination and equality legislation and clearly prohibit, both in law and in practice, direct and indirect discrimination based on all the grounds enumerated under Article 1(1) of the Convention. Please provide information of any progress made in this regard.

Scope of protection against discrimination. The Committee previously noted that pursuant to section 13(5)(c) and (e) of the EOA, two categories of workers are excluded from the protection of discrimination in respect to access to employment, namely domestic workers and workers in enterprises with less than ten employees on a full-time basis. It notes that the Government does not provide information on the manner in which it is ensured that such workers enjoy the same protection against discrimination as all other workers in practice. The Committee draws the Government’s attention to the fact that overly broad exceptions in equality legislation excluding groups of workers, including domestic workers, from the protection of discrimination in respect of access to employment may lead to discriminatory practices by employers against these workers, contrary to the Convention (2012 General Survey on the fundamental Conventions, paragraph 830). In order to avoid any undue limitations of the protection which the Convention seeks to guarantee, the Committee requests the Government to examine the manner in which section 13(5)(c) and (e) of the EOA is applied in practice, by providing information on any judicial decisions interpreting these provisions or any advice, decisions or recommendations made by the EOC in this regard. It requests the Government to take the necessary measures to ensure that domestic workers, who are particularly vulnerable to discrimination, as well as workers in enterprises with less than ten full-time employees, enjoy the same protection against discrimination as all other workers, as required by the Convention.

Discrimination on the basis of sex. Sexual harassment. Referring to its previous comments on the legislative protection against sexual harassment (sections 25 and 26 of the EOA and section 51(1)(a) of the ERiA), the Committee notes the Government’s indication that ten cases of sexual harassment were reported to the Ministry of Labour, Industrial Relations and Employment from June 2013 to May 2016, of which five were withdrawn; three were rejected; one was referred to the Court; and one is still pending. It further notes that since its establishment in 2012, the EOC has dealt with eight complaints of sexual harassment and that, according to its 2014 report, following an investigation, one case was referred to the Director of Public Prosecutions. The Committee further notes the “Guidelines for Employers” published by the EOC in April 2013 which aim to help employers to draft an equal opportunity policies, and which refer to sexual harassment. Noting that only a few cases of sexual harassment have been submitted to the Ministry of Labour, Industrial Relations and Employment or the EOC, of which a few have led to further proceedings, the Committee requests the Government to provide information on specific measures taken to ensure effective protection of workers seeking judicial or administrative redress for both quid pro quo and hostile environment sexual harassment, in both the public and the private sectors, with an indication of the applicable rules as regards the burden of proof. Please provide information on further measures taken, both at the national level, such as awareness-raising campaigns, and at the business level, such as the adoption of equal opportunity policies at the workplace level, or the establishment of collective agreements, to prevent sexual harassment. The Committee requests the Government to continue to provide information on any cases of sexual harassment detected by the labour inspectors or brought to their attention during regular inspection visits, or referred to administrative or judicial bodies, among which is the EOC, and the outcomes thereof.

Discrimination on the basis of political opinion. The Committee notes from the report published by the EOC in 2014 that political opinion is the most frequent ground of discrimination alleged by complainants. From 2012 to 2015, 73 complaints were lodged on the basis of that ground before the EOC. The Committee notes that according to the EOC report, while some well-founded cases have been dealt with and settled, very often the complainants failed to prove discrimination on the basis of political opinion. Recalling that the burden of proof can be a significant obstacle to justice, particularly in light of the fact that the information needed in cases related to equality and non-discrimination is in the hands of the employer, the Committee requests the Government to provide further information on the concrete measures taken or envisaged to prevent and eliminate discriminatory practices based on political opinion. Please continue to provide information on the number and the nature of cases of discrimination on the basis of political opinion detected by the labour inspectors or brought to their attention during the regular inspection visits or referred to administrative or judicial bodies, among which is the EOC, and the outcomes thereof.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes from the data available at the Central Statistics Office (CSO – Gender Statistics, 2014), that the female labour force participation remained low (39 per cent), that the unemployment rate for women was much higher than the unemployment rate for men (11.4 per cent against 5.5 per cent), and that unemployed women were generally more qualified than men. It notes that occupational gender segregation continues to be a significant feature of the labour market as women continue to be concentrated in the health, welfare and education sectors. Furthermore, the most popular fields of study for women in 2014 were traditional disciplines such as administration, accounting and education while they were largely underrepresented in engineering (3 per cent) and information technology (5 per cent). The Committee also notes from the statistical information provided by the Government the persistent low number of women in vocational training courses (19.8 per cent in 2015). It notes the Government’s indication that 25 ministries have formulated sectoral gender policies and that a National Costed Action Plan on Gender Mainstreaming will be formulated by February 2017 for implementation of strategies and actions aligned with these sectoral gender policies. The Committee again requests the Government to provide detailed information on the measures or strategies adopted and implemented, including in the context of national and sectoral gender equality policies, in order to increase the participation of boys and girls, as well as women, in a wider range of educational and vocational training courses, in particular, those related to sectors which tend to be male dominated. Please provide information on the results achieved in this regard. While hoping that a National Costed Action Plan on Gender Mainstreaming will be elaborated soon, in collaboration with the employers’ and workers’ organizations, the Committee requests the Government to provide specific information on the strategies and actions taken in the framework of the existing sectoral gender policies to ensure equality of opportunity and treatment between men and women. Please also indicate how many equal opportunity policies have already been adopted and implemented by employers, pursuant to section 9 of the EOA.

Article 5. Special measures of protection. Referring to its comments under the Equal Remuneration Convention, 1951 (No. 100), the Committee notes that Remuneration Orders Regulations governing the salt manufacturing industry (section 12), the sugar industry (section 8) and the tea industry (section 5) expressly provide for general limitations on the assignment of work to female workers. It recalls that protective measures applicable to women’s employment, 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. 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 (2012 General Survey, paragraph 840). The Committee therefore urges the Government to ensure that, in the process of reviewing and modifying the Remuneration Orders Regulations in the salt manufacturing, sugar and tea industries, limitations on assignment of work to women are strictly limited to maternity protection. Please provide information on any development in this regard.

Enforcement. The Committee notes the Government’s indication that the EOC has its own mandate and operates according to the provisions of the EOA, independently of the labour inspectorate. Noting the information provided on the number of complaints examined by the EOC and the Equal Opportunities Tribunal (EOT), the Committee requests the Government to continue to provide information on the number and the nature of discrimination complaints dealt with by the EOC, the EOT, or any other dispute settlement bodies, and discrimination cases reported or detected by the labour inspectorate, in both the private and public sectors, as well as on the remedies provided or sanctions imposed.

Practical information. The Committee takes note of the Government’s indication that, following the adoption of the EOA in 2008, it had decided not to publish the study on “Discriminatory practices in the Mauritian Labour Market” as the information collected to that end was outdated. Welcoming the Government’s intention to undertake new research on current discriminatory practices in the labour market, the Committee requests the Government to provide information of the status of this study, as well as an indication of its findings once available.