CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Panama (RATIFICATION: 1966)

Other comments on C111

Observation

Direct Request

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Articles 1 and 2 of the Convention. Discrimination based on sex. In its previous comments, the Committee requested the Government to take the necessary steps to ensure that women workers on temporary contracts have adequate protection against discrimination on grounds of pregnancy and maternity and to send information on the measures taken in this regard. The Government indicates in its report that the Labour Code makes special provision for the protection of maternity in sections 104 to 106, most specifically section 106, which provides that: “A pregnant woman may be dismissed from her job only for valid reasons and with the prior authorization of the judicial authorities. An employer who wishes to dismiss a pregnant woman for having given fair cause for dismissal shall seek prior authorization from the relevant labour court, before which it must be reliably established that there is fair cause for dismissal.” It further indicates that in application of these standards, the Supreme Court of Justice has consistently upheld jurisprudence whereby if the worker establishes that the decision is based unlawfully on grounds of her pregnancy, the decision shall have no legal effect. The Committee notes that according to the Government’s explanations, it would appear that in practice, the burden of proof is reversed, once the complainant has produced prima facie or plausible evidence of a violation. In this regard, the Committee notes that shifting or reversing the burden of proof constitutes one of the elements that contribute to addressing discrimination and promoting equality (see General Survey of 2012, paragraphs 885 and 962). The Committee also notes that the Government does not provide information on the measures adopted or envisaged to protect in practice women workers on temporary contracts against discrimination on grounds of pregnancy and maternity. The Committee requests the Government to take specific measures to ensure that women workers on temporary contracts have adequate protection against discrimination on grounds of pregnancy or maternity. The Committee requests the Government to clarify whether, in practice, legal procedure on discrimination cases provides for the reversal of the burden of proof.

Sexual harassment. The Committee noted in its previous comments that the adoption of Act No. 82 of October 2013 amending the Penal Code, which defines femicide and establishes penalties for acts of violence against women, was a step forward. However, in view of the difficulty of establishing proof (in particular if there are no witnesses), which is often the case, it requested the Government to consider the possibility of including a provision in the Labour Code or adopting specific legislation on sexual harassment at work that: (i) lays down a definition of sexual harassment that includes both quid pro quo and hostile work environment, and (ii) affords adequate protection for men and women in all aspects of employment and education, and provides for adequate penalties. The Committee also requested the Government to send information on the treatment afforded to complaints of sexual harassment at work, on administrative and judicial decisions handed down, on the penalties imposed and measures of redress provided. The Government indicates in its report that: (1) under section 213(15) of the Labour Code (Cabinet Decree No. 252 of 30 December 1971, as amended), sexual harassment at work is a disciplinary ground for dismissal; (2) Act No. 82 of 24 October 2013 amending the Penal Code aims to guarantee the right of women of all ages to a life free from violence, to protect the rights of women victims of violence in a context of unequal power relations, and to prevent and punish all forms of violence against women; (3) Executive Decree No. 100 of 20 April 2017 regulating the aforementioned Act No. 82 of 2013 was adopted, which provides for the preparation of a procedural manual to promote respect for the labour rights of women victims of violence, as well as for attention to complaints and reports of harassment, harassment at work and complaints of workplace violence. The Committee takes note of this information and notes that the Government’s report remains silent on the issue of including a definition of sexual harassment that includes quid pro quo and hostile work environment in the Labour Code or in specific legislation and, also, the issue of the express prohibition of sexual harassment in civil or labour legislation in addition to the Penal Code. Recalling that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, the Committee once again urges the Government to consider the possibility of including a provision in the Labour Code or adopting specific legislation on sexual harassment at work that lays down a definition of sexual harassment that includes both quid pro quo and hostile work environment, and affords adequate protection for men and for women in all aspects of employment and education, and provides for adequate sanctions. The Committee also requests the Government to send information on the outcomes of complaints of sexual harassment at work, the penalties imposed and the redress awarded.

Article 2. National policy on gender equality. In its previous comments, the Committee requested the Government to send information on the results of the monitoring and evaluation of the implementation of the Public Policy on Equal Opportunities for Women (PPIOM) and on the impact of the measures adopted on the supply of vocational training and the participation of women in the labour market, including in occupations traditionally held by men. The Committee requested the Government, in particular, to indicate the obstacles and difficulties observed in implementing the PPIOM and to include statistical information disaggregated by sex on the distribution of men and women in the various vocational training options and the various occupations and economic sectors, including the results of the time-use survey. In this regard, the Government indicates that the PPIOM Plan of Action 2015–2019 seeks to reduce inequalities between men and women, reduce the gender gaps that persist in economic, social, political, cultural, scientific and technological matters and achieve the full socio-economic inclusion of groups of women vulnerable for reasons of social class, ethnicity, family status, age or disability, together with all government institutions and civil society organizations joined around the National Women’s Council (CONAMU). The Committee notes that, according to the statistics provided by the Government: (1) the National Institute of Vocational Training and Human Resource Development (INADEH) reports that in 2014 there were 57,295 graduates, of whom 58.8 per cent were women and in 2016 there were 67,606 graduates, of whom 55.6 per cent were women. In courses traditionally taken by women, 90 per cent of graduates were women. Conversely, in activities traditionally performed by men, more than 90 per cent of graduates were men. In indigenous areas in 2014, 59.1 per cent of the skilled population were women; in 2015, 50.9 per cent and in 2016, 53.4 per cent; (2) according to the report Education in Panama: Five goals for improvement (2000–10), illiteracy affects 5.5 per cent of the population between 10 and 24 years of age. The national average illiteracy rate is 4.9 per cent for men and 6 per cent for women. In indigenous areas, male illiteracy is 19.5 per cent and female illiteracy 34.9 per cent. The national average years of schooling is 9.2 years, or 9 years for men and 9.4 years for women. In indigenous areas, the national average is 4.1 years of schooling, or 4.7 years for men and 3.5 years for women. Noting that the Government’s report does not mention the obstacles and difficulties encountered in the implementation of the PPIOM, and the situation described by the abovementioned statistics, the Committee reiterates its previous request on this matter and requests further statistical information disaggregated by sex on the distribution of men and women in the various vocational trainings available and the various economic sectors and occupations, including the findings of the time-use survey.

Access to education and vocational training for women from groups that are vulnerable to discrimination. In its previous comments, the Committee requested the Government to continue to take measures to further reduce the school drop-out rate of pregnant teenagers and to ensure access to education and vocational training for rural and indigenous women so as to lower the illiteracy rate and promote their access to better job opportunities. The Committee also requested the Government to send information, including statistics disaggregated by sex, on the impact of the measures taken. With regard to the school drop-out rate of pregnant teenagers, the Government reports that: (1) Act No. 29 of 13 June 2002, as amended by Act No. 60 of 20 November 2016, establishes standards for special health care, education and legal advice for teenage mothers and fathers and specifies the institutions responsible for its effective implementation; (2) despite the increase in the number of pregnant girls at the primary level between 2004 and 2015, the school drop-out rate decreased between 2010 and 2015, remaining between 1 and 1.2 per cent, a figure below the average drop-out rate of 1.86 per cent for the same period; (3) the National Institute for Women (INAMU), with support from non-governmental organizations, established Las Claras, a project in the rural area of Felipillo through which materials for on-the-job training for pregnant teenagers and young mothers was provided. With regard to rural, indigenous and marginal urban communities with no formal provision, the Government indicates that the Ministry of Education (MEDUCA) has developed various programmes at all levels of education. In 2015: (1) 22,452 children of 4 and 5 years of age were enrolled and in 2016, 23,400 were enrolled; (2) at the basic education level, in 2015 work was done with 29 groups and in 2016 with 87 groups; (3) in the pre secondary stage of basic education, 1,466 students benefited, including 515 rural and indigenous women; (4) the multi-year pre-secondary programme aimed at young people in rural and indigenous areas has been implemented since 2003 at 125 educational centres nationwide, with an impact on 3,898 students from the time of its establishment to 2016; (5) various programmes are being implemented for young people and adults who have not completed primary, pre secondary and secondary education; (6) other programmes seek to adapt the educational model to the needs of the most vulnerable populations, such as the Biocommunity programme, the Universal Bursary scheme and official secondary evening schools; (7) language courses have been provided to Ngabe, Kuna, Wounnaan, Emberá, Buglé and Naso communities to encourage their inclusion in the labour market. Between 2014 and 2017, 500 indigenous women were trained for appointment as new teachers, 700 women were trained in management and administration and 1,200 Ngabe received literacy courses; (8) in 2015, 14 INAMU centres were created to serve indigenous women in indigenous areas in their language. Between 2015 and 2017, INAMU centres served 700 indigenous women. The Committee takes due note of the information provided by the Government. Hoping that the positive trend will be sustained, the Committee requests the Government to continue to take all possible measures to reduce the school drop-out rate of pregnant teenagers and to ensure access to education and vocational training for rural and indigenous women with a view to reducing the illiteracy rate and promoting their access to better employment opportunities. The Committee also requests the Government to continue to report on the impact of these measures.

Equality of opportunity and treatment irrespective of race, colour and national descent. In its previous comments, the Committee requested the Government to send specific information on the measures taken to promote equality of opportunity and treatment in employment and occupation for Afro-Panamanian workers (particularly the measures taken under the National Action Plan for the Full Inclusion of the Black Ethnic Community) and indigenous workers. In this respect, the Government reports that: (1) Panama adopted the international human rights framework; Act No. 9 of 30 May 2000, declaring 30 May as a day of civic celebration and commemoration of the black Panamanian ethnic group; Act No. 16 of 10 April 2002, regulating the right of admission to public establishments and establishing measures to prevent discrimination; Executive Decree No. 124 of 27 May 2005, establishing the Special Committee for the establishment of a government policy for the full inclusion of the black Panamanian ethnic community; Act No. 11 of 22 April 2005, prohibiting discrimination in employment, among other measures; and Executive Decree No. 116 of 29 May 2007, creating the National Council of the Black Ethnic Community; (2) Act No. 64 of 6 December 2016 established, by consensus with Afro-Panamanian organizations, the National Secretariat for the Development of Afro-Panamanians (SENADAP), attached to the Ministry of Social Development (MIDES), with the aim of steering and implementing policy on social inclusion. SENADAP is developing the Project for the Development of Public Policy in favour of Persons of African Descent. The Committee notes these initiatives, but emphasizes that according to the 2010 Population and Housing Census, the illiteracy rate among persons of African descent over the age of 10 years was 2.2 per cent; furthermore, 7.2 per cent of men of African descent and 10.3 per cent of women were unemployed. The Committee requests the Government to continue to send specific information on the measures taken or envisaged to promote equality of opportunity and treatment in employment and occupation of Afro-Panamanian workers, as well as on the impact of those measures.

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.

Policy on equality in relation to workers with disabilities. According to the 2010 Population and Housing Census, people with disabilities constituted 8 per cent of the unemployed population, 7.5 per cent for men and 9.2 per cent for women. The proportion of men (14.4 per cent) with disabilities without any formal education was twice as high as the proportion of women (7.2 per cent). According to the 2010 Census, 4 per cent of persons of African descent have some form of physical or mental disability, whereas among other groups the rate is between 2.8 and 2.9 per cent; 5.8 per cent of the rural population have some form of disability whereas in urban areas the rate is 3.7 per cent. In this regard, the Committee notes that, in its concluding observations on the initial report of Panama, the United Nations Committee on the Rights of Persons with Disabilities (CRPD) expresses its concern at the limited participation of persons with disabilities in the labour market and the scarcity of statistical data on the wages of persons with disabilities; regrets the lack of mechanisms to ensure that persons with disabilities are not discriminated against in the open labour market, and of measures to ensure that reasonable accommodations are made in the workplace; and indicates that disability policies do not specifically cover women and girls, and the lack of policies and strategies on the prevention and punishment of violence against women and girls with disabilities, including indigenous persons and persons of African descent with disabilities (CRPD/C/PAN/CO/1, 29 September 2017, paragraphs 16 and 52). The Committee requests the Government to continue to provide statistical information, disaggregated by sex, on the impact of the measures adopted to ensure access of persons with disabilities to education and vocational training in particular for rural and indigenous women, reduce the illiteracy rate and promote their access to better employment opportunities.

Policy on equality in relation to other grounds of discrimination. Since the Government does not address this issue in its report, the Committee again requests the Government to provide information on the measures adopted to promote equality of opportunities and treatment in employment and occupation in respect of all criteria for discrimination enumerated in Article 1(1)(a) of the Convention, and the results achieved.