CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Paraguay (RATIFICATION: 1967)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the Central Confederation of Workers Authentic (CUT-A), received on 1 September 2017, which refer to various issues relating to the application of the Convention, and particularly: (i) the discriminatory dismissal and transfer of public officials on grounds of political opinion and other discriminatory practices based on political opinion at the national and local levels; (ii) the absence of framework legislation to combat discrimination, and the fact that the Bill to combat all forms of discrimination, which is to give effect to article 46 of the 1992 Constitution, has still not been adopted; (iii) the existence of latent discrimination towards certain groups, including indigenous peoples, persons with disabilities, persons living with HIV and AIDS, and lesbians, gays, bisexuals and transsexuals (LGBT), by state officials and society in general; and (iv) the persistent discrimination in law and practice against women. The Committee requests the Government to send its comments in this regard.

Article 1(1)(a) of the Convention. Grounds of discrimination. National extraction. The Committee recalls that since 2006 it has been referring to the omission of the criterion of national extraction from the prohibited grounds of discrimination set out in section 9 of the Labour Code. While noting that section 6 of the Labour Code provides that, in the absence of legal provisions or clauses of the employment contract applicable to controversial cases, they shall be resolved in accordance with the provisions of the applicable Conventions of the International Labour Organization, the Committee nevertheless recalls that there is a need for comprehensive legislation containing explicit provisions defining and prohibiting direct and indirect discrimination on at least all the grounds set out in the Convention, and in all aspects of employment and occupation, in order to ensure the full application of the Convention, enable workers to avail themselves of their right to non-discrimination on the basis, at least, of all the grounds enumerated by Article 1(1)(a) of the Convention in employment and occupation, and avoid any legal uncertainty based on the possible interpretations of legal provisions by courts.

The Committee notes that the Government refers in its report to: (i) Civil Service Act No. 1626/00, which lists Paraguayan nationality as one of the requirements for admission to the civil service; (ii) sections 229 and 283 of the Labour Code, which prohibit any distinction on grounds of nationality; and (iii) the constitutional provisions on equality and admission of foreign nationals. While noting this information, the Committee recalls that the concept of nationality is different from that of national extraction, as the latter encompasses distinctions on grounds of place of birth and foreign extraction or origin. Discrimination based on national extraction may be directed against persons who are nationals of a specific country, but who have acquired citizenship through naturalization or who are descendants of foreign immigrants, or persons belonging to groups of different national extraction living in the same State (2012 General Survey on the fundamental Conventions, paragraph 764). The Committee therefore requests the Government to:

(i) indicate the manner in which protection is guaranteed in practice to all men and women workers against any form of discrimination in employment or occupation on the ground of national extraction, including information on any complaints made to the courts or any cases of discrimination identified by labour inspectors;
(ii) take the necessary measures to include national extraction as one of the prohibited grounds of discrimination set out in section 9 of the Labour Code; and
(iii) provide information on any progress in this regard.

Discrimination on grounds of sex. Sexual harassment. The Committee refers to its previous comments, in which it noted that sexual harassment is only referred to in section 133 of the Penal Code, and that the Labour Code only provides in section 84 for the possibility for workers to end the employment relationship in the case of violence by the employer. The Committee recalls that addressing sexual harassment only through criminal proceedings is not sufficient, due to difficulties related to proof and the fact that the full range of behaviour that constitutes sexual harassment in employment and occupation is not taken into account. Similarly, legislation under which the sole redress available to victims is the possibility to resign, while retaining the right to compensation, does not afford sufficient protection, as it basically punishes victims and could dissuade them from seeking redress (see 2012 General Survey, paragraph 792). The Committee therefore requested the Government to consider the possibility of adopting specific provisions addressing sexual harassment at work and to continue providing information on the awareness-raising measures adopted in the public and private sectors. The Committee notes the Government’s reference to the adoption of Act No. 5777 on the comprehensive protection of women against all forms of violence, of 27 December 2016, the objective of which is to establish policies and strategies for the prevention of violence against women, care and protection measures, penalties, and comprehensive compensation. Among other forms of violence against women, the Act also addresses work-related violence, defined as any act of ill treatment or discrimination against women in the working environment by superiors, or colleagues of the same or a lower level. The Government also refers to the Intervention Protocol and the guide on care in cases of discrimination and labour harassment in the civil service, approved by resolution SFP No. 0516/2016. The Committee notes that the Protocol addresses sexual harassment resulting from a hostile work environment (section 5) and establishes a complaint procedure involving the adoption of final conclusions, which are not binding, including the recommendations deemed appropriate to prevent the reoccurrence of the acts covered by the complaint (sections 16 and 17). The Committee also notes the information provided by the Government on the preparation of a guide concerning cases of sexual harassment and labour harassment in the civil service, and the Safe Enterprise Label initiative, which is designed to include enterprises in actions to combat gender-related violence. While welcoming the adoption of these measures, the Committee requests the Government to specify whether the concept of work-related violence, as set out in Act No. 5777, also includes both quid pro quo and hostile work environment, sexual harassment and to provide information on the manner in which complaints of violence in the workplace are dealt with, including any penalties and compensation imposed. The Committee also requests the Government to continue providing information on any preventive and awareness-raising measures adopted, including information on the application of the Intervention Protocol in the civil service and the Safe Enterprise Label initiative.

Article 1(1)(b). Additional grounds of discrimination. HIV and AIDS. In its previous comments, the Committee noted with interest the adoption of Act No. 3940, of 14 December 2009, which contains provisions prohibiting discrimination based on HIV and AIDS and pressure or compulsion to undergo HIV tests as a requirement for access to employment, promotion or retention in employment, and it requested the Government to provide information on the application of this provision in practice. The Committee notes the Government’s indication concerning the adoption of the National Strategic Response Plan for HIV and AIDS and other sexually transmitted infections (STIs) 2014–18, which envisages, among other measures, action to promote the adoption of policies, laws and regulations on non-discrimination in relation to HIV and AIDS in all state bodies and to draw up and promote public policies on HIV and AIDS at the workplace. The Committee requests the Government to provide information on the measures adopted in the context of the National Strategic Response Plan to promote the principle of the Convention and the results achieved, and reiterates its request for information on the effect given in practice to Act No. 3940, of 14 December 2009, and particularly on any complaints made concerning discrimination on the basis of HIV and AIDS or pressure or compulsion to undergo HIV tests as a requirement for access to employment, promotion or retention in employment.

Articles 2 and 3. National policy. Promotion of equality between women and men. In its previous comments, the Committee noted, among other measures, the Paraguay 2030 National Development Plan which envisages the promotion of social inclusion through the elimination of discrimination and the promotion of gender equality, and the IIIrd National Plan for Equality of Opportunity for Women and Men (2008–17), and it requested the Government to provide specific information on the measures adopted in the context of those plans and their impact on the promotion of equality of opportunity for men and women in employment and occupation. The Committee notes the Government’s reference to the National Human Rights Plan, developed by the Human Rights Network of the Executive and the indication that it has entered the implementation phase with the adoption of Decree No. 10747, of 6 March 2013, which includes a specific component on the “transformation of structural inequalities for the enjoyment of human rights”. The Government adds that guides have been prepared on the design and implementation of equality plans in enterprises, and for the promotion of inclusive and non-discriminatory practices in the public service. The Committee also notes the Government’s information concerning the adoption of the Act on public policies for rural women, No. 5446 of 20 July 2015, which envisages action to promote and guarantee the economic, social, political and cultural rights of rural women, and particularly their right to employment with dignity, their access and use of productive, financial and educational services, and the development of programmes for the access of women to land (sections 4, 5 and 8). The Committee notes that the Act provides for the establishment of an inter-institutional commission responsible for monitoring, evaluating and recording the implementation of the public policies and plans drawn up in accordance with the Act (section 24). The Committee also notes that, in its concluding observations, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) expressed concern at the persistence of practices that discriminate against women with respect to working conditions, including high rates of underemployment, unfair dismissal and lower wages than men (E/C.12/PRY/CO/4, 20 March 2015, paragraph 16). The Committee once again requests the Government to provide specific information on the measures adopted in the context of the National Human Rights Plan and the Paraguay 2030 National Development Plan, and on the effect given to the Act on public policies for rural women, with a view to promoting equality of opportunity and treatment for men and women in employment and occupation, and their impact. The Government is also requested to provide information on: (i) any evaluation undertaken of the implementation of the National Plan for Equality of Opportunity for Women and Men (2008–17) in relation to the promotion of the principle of the Convention, and any action taken as a result; and (ii) the equality plans drawn up at the enterprise level and the inclusive practices adopted in the public service.

Promotion of equality of opportunity and treatment irrespective of race and colour. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern at: (i) the ongoing structural discrimination against indigenous peoples and by the discrimination against and invisibility of Afro-Paraguayans; and (ii) the multiple forms of discrimination that continue to be faced by Afro-Paraguayan women and indigenous women (CERD/C/PRY/CO/4-6, 4 October 2016, paragraphs 9 and 41). While noting and welcoming the fact that the National Human Rights Plan of 2013 envisages the formulation and implementation of a public policy for the eradication of all forms of discrimination, including all sectors that are traditionally affected, the Committee requests the Government to provide specific information on any measures adopted or envisaged in the context of the Plan or any other initiative to promote equality of opportunity and treatment in employment and occupation for Afro-descendent men and women, and the results achieved. With regard to indigenous peoples, the Committee refers to its comments on the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Article 5. Special measures. Persons with disabilities. The Committee notes the information provided by the Government on the various measures adopted to promote access to employment for persons with disabilities, including Act No. 4962, of 31 July 2013, which establishes benefits for employers as an incentive for the recruitment of persons with disabilities in the private sector, and the National Plan of Action on the Rights of Persons with Disabilities (2015–30), approved by Decree No. 5507, of 21 June 2016. The Committee requests the Government to continue providing information on the measures adopted to promote the access to and retention in employment of persons with disabilities, and to monitor and assess their impact.

Enforcement. The Committee notes the Government’s indication that the labour inspectorate has not recorded cases of complaints concerning discrimination for political reasons, and also notes the information contained in the statistical compendium of the Ministry of Labour, Employment and Social Security. The Committee requests the Government to continue providing information on any cases of work-related discrimination dealt with by the labour inspectorate, the judicial or other competent authorities and their outcomes.