CMNT_TITLE

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

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 30 August 2021, and the Government’s response.

Impact of the COVID-19 pandemic. In its observations, CONUSI indicates that during the pandemic there was an increase in workplace discrimination on the basis of sex. It refers in this respect to Decree No. 81 of 20 May 2020, which provides that the contracts of workers in enterprises whose operations have been closed, in accordance with preventive measures to combat the COVID-19 pandemic, shall be considered suspended for all employment-related purposes. Under section 3 of the Decree, this suspension implies that workers are not obliged to provide services and employers are not obliged to pay wages. CONUSI points out that the Government’s goal of preserving jobs through the suspension measures has not been achieved and that, as at June 2021, the Ministry of Labour and Employment Development (Ministry of Labour) (MITRADEL) recorded that 40 per cent of the suspended contracts had not been reactivated. CONUSI indicates that it alerted the Government that the measures adopted in the context of the pandemic were violating maternity protection and the maternity allowance and that the Government confirmed in reply that pregnant women could also be affected by the suspension provided for in Decree No. 81. In its response, the Government indicates that section 116-A of Act No. 157 of 3 August 2020, read in conjunction with the Labour Code, provides that the period of protection covering women who have been reintegrated into their jobs following confinement (one year) does not apply if the effects of the employment contract have been suspended under the terms of subsections 8 (unforeseeable circumstances or force majeure) and 9 (economic crises) of section 199 of the Labour Code. The remaining period of protection is reactivated as soon as the women worker is reintegrated. This means that the period of suspension does not run in parallel with the period of protection and the latter continues from the day on which the suspension of the contract ends, which is totally beneficial, when it is considered that during the period of contract suspension no worker can be dismissed. The government adds that the provisions of Act No. 157 of 2020 were transitional until 31 December 2020, with the exception of the addition of section 116-A of the Labour Code. The Committee requests the Government to provide information on the measures taken to evaluate the impact of the contract suspension system envisaged as a response to the pandemic on the employment of men and women workers, providing statistical data disaggregated by sex on the number of contracts suspended and the rate of return to work. It also requests the Government to indicate the measures adopted to ensure that women who are pregnant and on maternity leave are able to return to work as soon as possible, without risk of discrimination, particularly on grounds of pregnancy or maternity.

Articles 1 and 2 of the Convention. Discrimination on the basis of sex. With regard to the protection of women workers on temporary contracts in cases of discrimination on the grounds of pregnancy or maternity, the Government indicates in its report that under section 75 of the Labour Code contracts for a definite period must be clear and specific, as they would otherwise become indefinite contracts. The Government also indicates that in the case of women with special conditions, such as pregnancy or maternity, protection exists which has the status of a constitutional guarantee, and that section 38 of Decree No. 53 establishing regulations to implement Act No. 4 of 29 January 1999 establishing equal opportunities for women provides that “any requests from public or private employers for evidence of pregnancy, photographs, age limitations, civil status or the application of racist criteria shall be considered discrimination against women at work”. As regards reversing the burden of proof, the Government reiterates that the first step for dismissing a pregnant worker is the need for authorization from the labour authorities, where the employer is obliged to demonstrate that there is good reason for proceeding with the dismissal. The Committee notes the assertion by CONUSI in its observations that in a context where the number of temporary contracts in the country is increasing, it is difficult to establish the extent of cases of discrimination on grounds of pregnancy or maternity in relation to temporary contracts, since the relevant statistics are not disaggregated by sex or type of contract. The Committee recalls that discriminatory practices related to pregnancy or maternity have been particularly linked to dismissal and denial of the return to work following maternity leave, or the use of temporary contracts to discriminate against pregnant women (see General Survey on the fundamental Conventions, 2012, paragraph 784). The Committee once again requests the Government to provide information on the measures taken to ensure that women with temporary contracts are not subjected to discrimination on the grounds of pregnancy or maternity and are not denied a return to work after a period of maternity leave.

Sexual harassment. The Committee previously urged the Government to consider the possibility of including a provision in the Labour Code or adopting specific legislation 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 asked the Government to provide information on the outcomes of complaints of sexual harassment at work. The Government indicates that Act No. 7 of 14 February 2018, adopting measures to prevent, prohibit and penalize discriminatory acts and laying down other provisions, defines sexual or moral harassment as “any systematic, continual or repeated action or omission in which a person insinuates, invites, requests, pursues, limits or restricts rights, curtails freedom, acts grossly with insults, or humiliates another person in order to obtain a sexual favour or affect their dignity. In the workplace, this includes, but is not limited to, exploitation, or denying the victim the same employment opportunities or the same selection criteria, or refusing to respect the person’s continuing presence in employment, or relates to general conditions of work or involves disparaging the work performed. In the educational sphere, it consists of threats, intimidation, humiliation, mockery, physical mistreatment, discrimination against persons with disabilities or any other type of discrimination, whether or not it is based on the gender of the victim” (section 3(1)). The same Act provides that non-compliance with the established provisions shall incur the penalty of a fine of 550 to 1,000 Panamanian balboas (PAB) for the enterprise, and that the hierarchical superiors of public institutions shall be deemed to have violated the duties of public servants, as established and sanctioned by the Penal Code (section 8). The Act also provides that all employers must establish – by means of workplace regulations, collective agreements or management orders – an adequate and effective complaints and settlement procedure, to enable complaints against such conduct to be made (section 6(2)). This procedure must establish internal policies in line with the provisions of the Act, promote confidentiality, protection for the complainant and for witnesses, and also exemplary penalties for any person guilty of such conduct. The Government also indicates that the Ministry of Labour has drawn up a model protocol to identify, prevent and tackle gender-related violence, which establishes the obligation for enterprises and public institutions to draw up procedures to prevent harassment, including sexual harassment. While duly noting this information, the Committee observes that the Government’s report does not include any information on the practical handling of complaints made of sexual harassment at work. The Committee requests the Government to provide information on internal complaint and settlement procedures adopted pursuant to section 6(2) of Act No. 7 of 14 February 2018, and on the action taken on complaints of sexual harassment at work made through these procedures. The Committee also requests the Government to provide detailed information on the number of cases identified by the labour inspectorate and of complaints lodged – including in judicial proceedings in the civil, administrative and criminal courts – and also on the outcome of such cases, the penalties imposed and remedies granted.

Article 2. National policy on gender equality. In reply to the Committee’s request concerning the impact of the Plan of Action on equal opportunities for women (PPIOM) 2016–19, the Government indicates that it has not yet been possible to undertake the evaluation of the PPIOM 2016–19 as the period for its implementation has not been fully completed, a situation aggravated by the start of the COVID-19 pandemic. However, the Government provides detailed information on the development of the PPIOM 2016–19, including details of the activities of the Government Mechanism Network comprising 48 public bodies – and the five working groups within the network, responsible for ensuring implementation of the strategic actions and guidelines of the ten thematic areas of the PPIOM 2016–19. The Government also refers to a series of recent initiatives, such as: (1) the design and launch of a digital survey on gender equality at work and in the family during the COVID-19 pandemic; (2) the Programa de Desarrollo, Mujer en Logística (“women in logistics development programme”) pilot project for identifying and assisting women in vulnerable situations, and building technical and leadership skills for their return to the labour market; (3) the Eje Cambiando Vidas (“changing lives”) project, which seeks to empower women through entrepreneurship, training and cooperativism, promoting their economic independence and empowerment; (4) the training workshop for domestic workers and housekeepers who study at the Mujer Maria Auxiliadora Training Centre (CECAMMA); and (5) the training programme against violence and discrimination towards women as part of the activities of the Authentic Federation of Workers (FAT). The Government also provides statistical information, disaggregated by sex, on the distribution of graduates of the National Institute of Vocational Training and Human Resource Development (INADEH) in the various occupational categories, indicating, inter alia, that: (1) between 1 January and 31 May 2021, a total of 47 women and 17 men graduated in the Guna Yala indigenous area, and 305 women and 299 men graduated in the Ngäbe Buglé indigenous area; (2) in 2020, a total of 10,442 men and 21,804 women graduated within the general population; (3) of these graduates, a higher proportion of women received training in the areas of business management (2,893 women and 699 men) and information technology (3,597 women and 1,500 men); and (4) between 2017 and 2021, 57.4 per cent of the population who attended INADEH are women, with the majority engaged in activities in the services sector and agriculture. While duly noting this information, the Committee observes that, according to the same statistics, the percentage distribution of graduates by sex, according to training areas, shows significant segregation in certain sectors, such as beauty treatment and cosmetology (94 per cent of graduates are women), fashion and textiles (92 per cent of graduates are women), mechanical engineering (93 per cent of graduates are men) and automotive engineering (92 per cent of graduates are men). In this regard, the Committee recalls that providing vocational guidance and taking active measures to promote access to education and training, free from considerations based on stereotypes or prejudices, is essential in broadening the range of occupations from which men and women are able to choose (see 2012 General Survey, paragraph 750). The Committee requests the Government to continue providing statistics, disaggregated by sex, on the distribution of men and women in the various categories of vocational training and areas of occupation. The Committee also requests the Government to provide information on any measures taken to promote access to training that seek to expand the diversity of occupations for men and women, and to provide detailed statistics disaggregated by sex on the specific impact of these types of training on access to employment.

Access to education and vocational training for women from groups that are vulnerable to discrimination. With regard to measures to reduce the school drop-out rate of pregnant teenagers and ensure access to education and vocational training for rural and indigenous women, the Government indicates that most of the services provided by the Ministry of Social Development (MIDES) target vulnerable sectors, and refers to the following initiatives: (1) the Counselling and Comprehensive Care Centre (COAI); (2) the MIDES literacy programme; (3) the territorial networks project; (4) the National Secretariat for the Development of Afro-Panamanians (SENADAP); (5) the company sponsorship programme; and (6) the opportunities network programme. The Government also provides information on the activities of the National Institute for Women (INAMU) on training, and specifically the Tu Puedes Mujer (“women can”) programme, developed in 2018 in ten provinces and two indigenous areas (Ngäbe Buglé and Emberá Waunaan), and in 25 communities, of which 24 are rural and six are indigenous; as well as the Mujer Agricultora (“women farmers”) and Mujer Cambia Tu Vida (“women change your life”) programmes. The Mujer Cambia Tu Vida programme continued to develop in the first half of 2021, benefiting 103 participants, of which 99 were women, and training is planned for indigenous women’s groups in the Ngäbe Buglé and Emberá Waunaan indigenous areas. The Government also provides information on the activities of the Ministry of Education (MEDUCA) aimed at reducing school drop-out rates and the percentage of pregnant teenagers, including the sexual and reproductive health programme for the prevention of teenage pregnancy. The Government’s report also includes statistical information indicating that in 2019 there were 40 cases of pregnant students and a drop-out rate of 1.0, while in 2018 there were 33 pregnant students and a drop-out rate of 0.9. In its observations, CONUSI indicates that high illiteracy and school drop-out rates persist among the indigenous population (the literacy rate for indigenous women is 75.4 per cent and for non-indigenous women it is 98.5 per cent). It also notes that 18.5 per cent of pregnant teenagers were registered in the indigenous area (319 in the Guna Yala indigenous area and 1,476 in Ngäbe Buglé), and that three quarters of pregnant teenagers drop out of school, which evidences the lack of relevant safeguards and monitoring by the institutions. CONUSI emphasizes that the Government’s reports on this matter fail to assess the impact that the measures taken have had on addressing the problem. In its response, the Government refers to other curricular and extracurricular strategies for the reinforcement of vocational guidance and training through the strategic agreements and alliances of the MEDUCA. The Committee welcomes the information provided by the Government and requests it to continue providing information on the training activities specifically targeting women from vulnerable groups (rural and indigenous women) to reduce the illiteracy rate and promote their access to better job opportunities, as well as on the specific impact of such measures (evolution of literacy rates among the groups concerned, rates of effective access to employment after training, etc.). The Committee also requests the Government to provide updated data on the school drop-out rate of pregnant teenagers, the measures taken to reduce this rate and their actual impact.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the information provided by the Government, in reply to its request regarding measures taken to promote equality of opportunity and treatment in employment and occupation of Afro-Panamanian workers, on the activities of the SENADAP, the work plan of which includes: (1) updating the National Plan for the Development of Afro-Panamanians 2007, to present it in final form as the Overall Plan for the Development of Afro-Panamanians – Vision 2022–2030; (2) development of the project “Working towards a public and state policy to include the history and contributions of Afro-descendent peoples in educational curricula”; (3) development of the Ruta de Tambores (“drum route”) programme, an outreach programme in the communities to gain their inputs into public policy; and (4) awareness- and profile-raising initiatives highlighting the contributions of Afro-Panamanians to national life. The Committee also takes note of the Government’s explanations regarding the efforts expended by the SENADAP to work together with the Mesa Técnica Censal Afro Panamá (METACENSO) (an Afro-Panamanian survey body), and the National Statistics and Census Institute (INEC), with a view to incorporating an Afro-ethnic question in the labour market survey scheduled for 2021 and in the population and housing census planned for 2022. CONUSI, in its observations, indicates that Afro-descendent women encounter greater difficulty in entering the labour market, with high indices of poverty, illiteracy, and precarious forms of work. CONUSI also emphasizes that discriminatory and stereotypical attitudes based on race, colour and national extraction of workers are recurrent. While noting the information provided on the existence of pertinent plans and programmes, the Committee requests the Government to provide detailed information on the concrete measures adopted under these initiatives, and to clarify which of the activities are specifically aimed at supporting Afro-Panamanian women workers. The Committee also requests the Government to provide statistical information, disaggregated by sex, sectors and occupations, regarding access of Afro-Panamanian and indigenous workers.

Policy on equality in relation to workers with disabilities. In response to the Committee’s request for information on the impact of the measures to promote access to education and occupational training, reduce the illiteracy rate, and promote better access to employment opportunities, the Government indicates that the relevant institutions work within the framework of the National Advisory Council on Disability (CONADIS), which coordinates with other institutions such as the Ministry of Education and INADEH. Since 2017, action has been under way to promote the integration of persons with disabilities in employment, and the following results have been obtained: 1,679 men and 1,397 women have taken part in guidance seminars and activities; 634 men and 473 women have attended awareness-raising days; and 6,329 men and 3,515 women have taken part in activities to promote the employment of persons with disabilities. The Government also refers to various programmes, and in particular to: (1) the Programme to promote employment integration (PAIL) in which the Ministry of Labour and the participating enterprise each pay 50 per cent of the cost of the grant for participants, an amount equivalent to the minimum wage; and (2) the Orienta Panama (“guiding Panama”) programme, which focuses on vocational training for young persons with disabilities studying in public colleges. The Committee also notes the data provided on the related activities of the Department for the Socioeconomic Integration of Persons with Disabilities at national level, indicating that in 2020 the department received 106 vacancies registered at central headquarters (Panama City) and 74 vacancies in the regional directorates. A total of 50 men and 40 women were placed at central headquarters, and 24 men and 9 women were placed in the regional directorates. The Ministry of Education also lends support to the Panamanian Institute for Special Empowerment (IPHE) in awareness-raising programmes on sexual and workplace harassment. While noting the information provided on the programmes and measures adopted, the Committee observes that CONUSI points to a lack of data and indicators giving a true picture of the employment of persons with disabilities, which makes it impossible to design appropriate plans, programmes and policies. CONUSI also indicates that a significant number of enterprises do not comply with the obligation established by Act No. 15 of 31 May 2016 to include persons with disabilities as 2 per cent of their staff. In its response, the Government indicates that: (1) the INADEH has implemented 153 technical training actions for persons with disabilities, with the participation of 345 men and 225 women throughout the national territory; (2) during the period 2017–21, there have been 150 awareness-raising days on Act No. 15 of 2016, with a total participation of 1,529 persons, consisting of 821 men and 708 women from the public and private sectors; (3) the “Yo Si Cumplo” (“I’m in compliance”) label was implemented in recognition of good labour practices and the commitment of enterprises to the process of labour-market inclusion, with the label being awarded on 137 occasions; and (4) this process implies guidance and awareness-raising for enterprises through action by 74 labour inspectors at the national level, using revised and appropriate procedures for the enforcement of the labour-market inclusion of persons with disabilities. The Committee takes due note of all this information and requests the Government to provide information on the results achieved in follow-up to the training and awareness-raising activities on labour inclusion of persons with disabilities.

Policy on equality in relation to other grounds of discrimination. The Committee observes, with regard to its request for information on measures to promote equality of opportunities and treatment in employment and occupation in respect of all grounds of discrimination enumerated in the Convention, that the Government refers to its activities related to the promotion of gender equality. The Committee recalls that Article 1(1)(a) of the Convention enumerates seven protected criteria, namely, race, colour, sex, religion, political opinion, national extraction and social origin. The Committee observes that, apart from the information provided on activities related to discrimination on the grounds of sex, race, colour and national extraction, referred to in the corresponding parts of the present comment, the Government has provided no information on its efforts to address discrimination in employment and occupation on the grounds of religion, political opinion or social origin. The Committee reiterates its request to the Government to provide detailed information on the measures adopted in respect of these three grounds of discrimination, as well as information on the number of cases identified by the labour inspectorate or addressed by other competent bodies such as the law courts.