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Violence and Harassment Convention, 2019 (No. 190) - Uruguay (RATIFICATION: 2020)

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The Committee notes the Government’s first report.

The Committee notes the observations of the Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT) received on 31 August 2022. The Committee also notes the Government’s reply to those observations received on 8 October 2022.

Articles 1, 4(2) and 7 of the Convention. Definition and prohibition of violence and harassment in the world of work. In its report, the Government refers to Act 19.580 of 2018 “on gender-based violence against women”, which: (1) defines gender-based violence against women and its various forms, such as physical, psychological, sexual and economic violence, due to prejudice against sexual orientation, gender identity or expression, and violence at work (sections 4 and 6); and (2) prohibits all forms of discrimination against women, including gender-based violence against women as being a form of discrimination (sections 4 and 5). The Committee notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) has stated that “violence which is directed against a woman because she is a woman or that affects women disproportionately” is a form of discrimination against women (CEDAW General recommendations No. 19, para. 6; and No. 35, para. 1). The Government also provides information on Act 18.561 of 2009 “on sexual harassment, and prevention and punishment regarding the workplace and in teacher-student relations”, which defines sexual harassment (sections 2 and 3). The Committee also notes that Act 17.817 of 2004 “against racism, xenophobia and all other forms of discrimination” includes the exercise of physical and moral violence in the definition of the term discrimination. Also, the Criminal Code defines as a crime certain conduct that could cover forms of violence and harassment in the world of work, such as the crime of injury, theft or insult.

The Committee notes that the provisions of Acts 19.580 and 18.561 define some of the forms of gender-based violence and harassment covered by Article 1(1)(b) of the Convention, and highlights that the concept of “gender-based violence and harassment” provided for in this Article is broader as it covers all persons, and not only women, and is not limited to sexual harassment. The Committee also emphasizes that Article 1(1)(a) of the Convention sets out a definition of violence and harassment that includes behaviours, practices and threats against all persons, men and women, beyond gender-based violence and harassment, and covers violence and harassment regardless of whether it is based on discriminatory grounds. The Committee notes that the PIT-CNT states, in its observations, that a Bill is being prepared in the country to give effect to the Convention. It considers that the Bill runs counter to the Convention by stipulating that acts of harassment must be repeated. In response, the Government reports on the process followed to date to prepare the proposal, and indicates that it will communicate the outcome of further progress.

The Committee asks the Government to clarify whether Act 17.817 covers forms of violence and harassment in the world of work that are not covered by other laws (given that Act 18.561 is focused on sexual harassment) and forms of gender-based violence and harassment against all persons (given that Act 19.580 is addressed to women). Given that a bill is being prepared to give effect to the Convention, the Committee considers that it would be appropriate to take this opportunity to define and prohibit all forms of violence and harassment in the world of work covered by Article 1 of the Convention and that are not already defined and prohibited by existing legislation, including those that are not based on grounds of discrimination, as well as violence and harassment based on sex or gender against all persons. The Committee requests the Government to provide information on the progress relating to the adoption of the above bill and reminds the Government that it may avail itself of the technical assistance of the Office if necessary.

Articles 2 and 3. Scope of application. Personal scope. The Government indicates that Acts 19.580 and 18.561 “protect all workers without exclusions and with no categories of workers being excluded”, and that the General Inspectorate of Labour and Social Security (IGTSS) oversees their implementation, protecting all workers on an equal footing. It also indicates that these Acts do not distinguish between the public or private sector, the formal or informal economy, or urban and rural areas. The Committee notes in particular that Act 18.561: (1) refers to labour relations and to harassment that is detrimental to the work situation, the work environment or people’s current or future situation (sections 1, 2 and 3); and (2) covers agency workers, pursuant to Decree No. 256/017 regulating the above Act (section 10). The Committee requests the Government to provide information on the application in practice of Act 18.561 with respect to the protection of the persons mentioned in Article 2, taking into account that the Act refers to labour relations and the work situation.

The world of work. The Committee notes the Government’s indication that, although the legislation does not contain explicit references to the contexts provided for in Article 3 of the Convention, Act 18.561 can be applied to these contexts. The Committee also notes that Act 19.580 sets out a scope of general application. The Committee requests the Government to provide information, if available, on how Acts 18.561 and 19.580 have been applied in practice in cases of violence and harassment in the world of work that have occurred in the contexts provided for in Article 3(a) to (f).

Article 4(2). An inclusive, integrated and gender-responsive approach.The Committee notes the information provided by the Government in its report and welcomes the efforts made to prevent and eliminate violence and harassment in the world of work. The Committee notes that: (1) although most of the current measures focus on sexual harassment and violence against women, a bill is being drafted to address other forms of violence and harassment in the world of work; (2) the treatment of gender-based violence in Act 19.580 is limited to violence against women; and (3) Act 19.684 of 2018 is aimed at ensuring the right of trans persons to a life free from discrimination and stigmatization. The Committee hopes that the government will seize the opportunity of the current drafting of the Act on violence and harassment to take into consideration all the provisions set forth in Article 4(2), and to cover violence and harassment on grounds of sex or gender against all persons.

Article 6. Equality and non-discrimination.The Government refers to a series of measures to promote equality and non-discrimination in general and in employment and occupation in particular, such as the development of information and awareness-raising campaigns on ILO standards, and on the plan concerning equal opportunity and treatment in employment, as well as the conclusion of an agreement on a provision regarding non-discrimination to be included in collective agreements. The Committee notes this information and refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Article 8. Appropriate preventive measures.The Committee notes the Government’s indications that: (1) the IGTSS can receive reports of violence and harassment from informal workers, and further to its intervention, it promotes workers’ regularization through the social security institution; and (2) the enterprise bodies for cooperation among employers, workers and the sectoral tripartite committees for each sector or branch of activity, established by Decree No. 291/007, may address the issue of violence and harassment at work. The Government refers in particular to the measures relating to equality and prevention of sexual harassment, and harassment at work, adopted in the transportation and storage sector by the Wage Council (Group 13). The Committee also notes that Acts 19.580 and 18.561 expressly recognize the responsibility of the State to prevent, respectively, gender-based violence against women and sexual harassment in the workplace. The Committee requests the Government to provide information on:

(i)the number of cases of violence and harassment against informal workers that have been brought to the attention of the IGTSS, as well as the protection measures and the sanctions adopted in this regard;
(ii)the measures taken or planned for the prevention of violence against informal workers, including those aimed at preventing violence and harassment by the public authorities; and
(iii) the specific sectors, occupations and work arrangements, where, in consultation with the workers’ and employers’ organizations concerned, a higher incidence of violence and harassment has been identified, and prevention and protection measures taken in this regard.

Article 9. Responsibilities of employers.The Committee notes the Government’s reference to Act 18.561, under which “every employer or manager must [...] adopt measures to prevent, discourage and punish sexual harassment” (section 6). It further notes that: (1) Act 19.580 requires public and private bodies, agencies and institutions to adopt measures to prevent and protect against gender-based violence that occurs within institutions (section 47); and (2) Decree No. 291/007 sets forth the obligation of employers to guarantee safety and health for workers in all areas relating to work (section 2).

Workplace policy. The Committee notes the Government’s indications that: (1) Decree No. 256/017, implementing Act 18.561, includes the possibility for the employer to adopt protocols for the prevention of sexual harassment (section 3), and sets out the necessary components of the procedure (section 4); and (2) under section 6(i) of Decree No. 680/977, the IGTSS can, within the context of its investigations, order, as preventive measures, the adoption of protocols to address violence and harassment in the workplace. While noting the above-mentioned decrees that provide for the possibility of adopting protocols for the prevention of sexual harassment, the Committee considers that, under Article 9(a) of the Convention, legislation should require the adoption and implementation of workplace policies on violence and harassment, such that they may be adapted to what is considered to be reasonable and practicable (for example, depending on the size or activity of the enterprise). The Committee requests the Government to provide information on the measures taken in this regard and recalls the importance of ensuring that workers and representatives are consulted in this respect. The Committee also requests the Government to indicate the circumstances in which the IGTSS usually orders the adoption of protocols as a preventive measure to address violence and harassment at work.

Violence and harassment to be taken into account in the management of occupational safety and health. The Government indicates that bipartite cooperation bodies in enterprises may address the issue of violence and harassment. The Committee also notes that, with regard to the identification of hazards and risk assessment: (1) Decree No. 291/007 establishes the capacity of bipartite bodies to plan the prevention and treatment of occupational hazards; and (2) Decree No. 256/017 provides for the adoption of periodic measures of inspection and evaluation of the work environment when an investigation has been completed in this regard (section 3). The Committee requests the Government to provide information on the manner in which employers and bipartite cooperation bodies deal with issues of violence and harassment in the world of work in practice (for example whether such bodies are consulted in the development of workplace measures or how incidents of violence and harassment are taken into account in the identification of risks).

Information and training. The Committee notes the Government’s reference to Act No. 18.561, which establishes the obligation of the employer or manager to “communicate and disseminate to supervisors, representatives, workers, clients and suppliers [...] the existence of a consistent institutional policy against sexual harassment” (section 6), and its Regulatory Decree No. 256/017, which includes the possibility for employers to impart training courses for staff relating to sexual harassment and to adopt dissemination measures to ensure that workers are aware of the policy against sexual harassment (sections 3, 5 and 7). The Committee also refers to Decree No. 291/007 which provides for the planning of training relating to occupational safety and health of the bipartite cooperation bodies. The Committee requests the Government to provide information on:

(i)the penalties provided for in the case of failure to comply with the information and training obligations under Act No. 18.561 and its Regulatory Decree No. 256/017, and Decree No. 291/007; and
(ii)the measures adopted, where appropriate, to ensure that such information and training is provided in an accessible format.

Article 10(a) and (h). Monitoring and law enforcement. The Government indicates that the IGTSS is the body responsible for the monitoring and enforcement of the legislation on violence and harassment at work, and refers to Decree No. 680/977, which establishes the competences of the IGTSS for, inter alia: (1) monitoring compliance with and application of the legislative and regulatory provisions, and evaluating the application of the legislation (section 6(b) and (l)); and (2) requesting, on its own initiative, the immediate adoption of the relevant safety and health provisions, or the closure of the affected sector or premises, according to the severity or imminence of the hazard and in conformity with the legal standards (section 6(i)). The Government also states that between June 2021 and May 2022, 29 complaints of sexual harassment and seven complaints of discrimination were submitted. The Committee further notes that specific bodies are established under Act No. 19.580 (the National Institute for Women, the national advisory council for a life free of gender-based violence against women and the observatory on gender-based violence against women) and Act No. 17.817 (the honorary commission against racism, xenophobia and all other forms of discrimination) with a mandate to register data and monitor compliance with these Acts respectively. The Committee requests the Government to continue to provide information on the number of cases of violence and harassment in the world of work brought to the attention of the labour inspectorate and other competent authorities, as well as on the penalties imposed and the remedies granted.

Article 10(b), and (e). Easy access to safe, fair and effective reporting and dispute resolution mechanisms and procedures.The Committee notes the Government’s reference to: (1) the IGTSS as the main mechanism for complaints and investigations into cases of violence and harassment, and the establishment through Decree No. 680/977 of its competence to intervene directly, investigate, conduct proceedings and impose penalties (section 6(c), (f) and (k)); (2) the possibility for appeal of the IGTSS cases before the administrative courts; and (3) the free assistance offered to workers, enterprises and trade unions by the IGTSS Complaints and Advice Office on the legislation on violence and harassment and the filing of complaints. The Committee also welcomes the fact that Act No. 18.561 and its Regulatory Decree No. 256/017 on sexual harassment, referred to by the Government, provide for: (1) the possibility for workers to submit complaints for sexual harassment within their enterprise or organization, and the establishment of workplace protocols relating to complaint mechanisms and investigation procedures; (2) the powers and procedures of the IGTSS for investigation and punishment in cases of sexual harassment; (3) the institution of amparo proceedings without the need to exhaust other prior remedies; (4) the protection of the worker concerned and of witnesses against dismissal or disciplinary sanctions, and a presumption of retaliation if the action is taken within 180 days of the submission of the complaint; (5) various measures to protect the psychological and physical health of the victim and against the harmful effects of the reported situation on victims and witnesses, such as adjusting timetables or avoiding tasks involving contact between the complainant and the suspect; and (6) the possibility for trade unions to submit complaints before the IGTSS and to participate in the proceedings. The Committee also notes that Act No. 19.580: (1) establishes the obligation of public and private bodies, agencies and institutions to adopt measures for the investigation and punishment of gender-based violence against women that occurs within the institution, under the application of the provisions of Act No. 18.561; and (2) includes measures to ensure access to complaints mechanisms for women with disabilities and rural women. Regarding the existence of safe reporting and dispute resolution mechanisms and procedures, the Committee requests the Government to indicate whether there are other measures for, – or if it has considered extending the application of the measures foreseen for cases of sexual harassment and gender-based violence against women to – cases concerning other forms of harassment and violence that are not based on grounds of discrimination or that are not committed against women.

The Committee notes that Act No. 19.580 contains various specific provisions for cases of gender-based violence against women, such as: (1) the right of victims not to have their testimony devalued on the basis of gender stereotypes (section 7); (2) the competence of the specialized criminal courts for gender-based, domestic and sexual violence and the Montevideo criminal prosecutors’ offices for sexual offences, domestic violence and gender-based violence (sections 51 and 58); (3) the coordination of an integrated care system for victims of violence against women that offers psychosocial care, legal advice and support, support when the complaint is submitted and processed, health care, housing solutions and job placement, among others; and (4) the adoption of precautionary measures for the protection of victims in cases of violence against women (sections 63 to 65). In addition, Decree No. 256/017 establishes prima facie evidence in cases of sexual harassment (section 15). The Committee requests the Government to indicate whether it has considered extending the measures applicable for cases of sexual harassment and gender-based violence against women to other cases of gender-based violence and harassment in the world of work, or if other specific measures are envisaged.

Easy access to appropriate and effective remedies.The Committee notes that Act No. 18.561 establishes the right of workers victims of sexual harassment to opt for minimum compensation for moral damages or to consider themselves indirectly dismissed, in which case the dismissal will be considered abusive and will entitle the worker to a special compensation that may be accumulated to the general compensation in the case of sexual harassment (section 11). The Committee requests the Government to specify the remedies that exist for other forms of violence and harassment in the world of work.

Article 10(c). Protection of privacy and confidentiality.The Government indicates that: (1) only the parties determined by the investigator have access to the files of the IGTSS; (2) section 8 of Act No. 18.561, which provides for the confidential interviews of witnesses by the IGTSS in proceedings relating to sexual harassment at work, applies by analogy to situations of violence and harassment; and (3) Act No. 19.854 establishes that the IGTSS may conduct interviews with witness under protection in investigations of moral harassment and discrimination. The Committee also notes that: (1) under Act No. 19.580, criminal proceedings for violence against women may be conducted in closed hearings (section 75); (2) the same Act establishes the right for women victims of violence to have their confidentiality and privacy of their personal data guaranteed (section 7); and (3) in sexual harassment proceedings, the employer must keep confidential the proceedings instituted, and the identity of victims and witnesses (section 6 of Act No. 18.561). The Committee emphasizes that the reference to “the individuals involved” in Article 10(c) of the Convention comprises not only victims and witnesses, but also suspects. The Committee requests the Government to provide information on the measures taken, to the extent possible and as appropriate, to protect the privacy of those suspected of violence and harassment in the world of work, and to prevent the misuse of privacy and confidentiality requirements.

Article 10(d). Sanctions.The Committee notes the Government’s indication that: (1) in accordance with Decree No. 186/2004 regulating labour infringements, violence and harassment qualify as a serious infringement, and sexual harassment and discrimination as a very serious infringement, and monetary penalties are applicable according to various criteria; and (2) under Act No. 15.903, the IGTSS is competent to impose penalties on enterprises that commit infringements. The Committee also notes that: (1) in accordance with section 4 of Act No. 18.561, the perpetrator of sexual harassment will be punished in line with the seriousness of the conduct, and may be dismissed for gross misconduct and, in the case of a public servant, the conduct will be classified as serious misdemeanour; and (2) the Criminal Code provides for relevant sanctions for various types of conduct that could constitute violence and harassment in the world of work, and that in the case of violence against women, a monetary penalty may be added to the sentence (section 80 of Act No. 19.580). The Committee requests the Government to specify the provisions of Decree No. 186/2004 according to which violence and harassment at work can be qualified as serious crimes.

Article 10(f) Domestic violence. The Government refers to section 40 of Act No. 19.580, which provides for a series of measures to ensure the retention in work of women victims of violence, including domestic violence, such as: full payment of their salary or wages while they attend hearings, expert opinions or other proceedings or actions, special leave with pay for 24 hours, flexible hours or changes to their timetable or place of work, and stability in their job for a period of 6 months. The Committee also notes that Act No. 17.514 of 2002 provides for the possibility of prohibiting, restricting or limiting the presence of the perpetrator of domestic violence in the victim’s workplace. The Committee requests the Government to provide information on the applicability of section 40 of Act No. 19.580 to cases of domestic violence against all persons.

Article 10(g). Right to remove oneself from a work situation and the duty to inform management.The Committee notes Decrees Nos. 680/977 and 256/017, to which the Government refers. The Committee also recalls its comments concerning the implementation of the Occupational Safety and Health Convention, 1981 (No. 155), in which it requested the Government to take the necessary measures to ensure that national legislation provides for such a right in the area of occupational safety and health. The Committee requests the Government to provide information on the measures adopted aimed at recognizing the right to remove oneself from a work situation for cases of violence and harassment and the duty to inform management of this situation.

Article 11(a). Address violence and harassment in relevant policies. The Committee notes the Government’s indication that violence and harassment are addressed in the bipartite cooperation bodies and the sectoral tripartite committee for preventing and addressing occupational risks established by Decree No. 291/007, as well as in the National Occupational Safety and Health Council (CONASSAT) and the IGTSS, which includes an occupational health and safety perspective. In addition, the Committee notes that: (1) gender-based violence against women, including violence at work, is covered in Act No. 19.580 on gender-based violence, which also addresses the situation of migrant women victims of gender-based violence (section 43); (2) Act No. 17.817 addresses physical and psychological violence on various grounds of discrimination with a general scope; (3) Act No. 18.520 establishes equal labour rights for foreign workers; and (4) the national gender equality strategy includes certain measures to prevent sexual harassment at work (policy guidelines VIII.2 and X.3). The Committee also notes that Act No. 19.684 provides that the design, promotion and implementation of public policies and affirmative action targeting trans persons who reside in Uruguay, and who have historically been victims of discrimination and stigmatization, are of public interest. The Committee requests the Government to provide information on the manner in which the national policy framework on trans persons and on occupational safety and health address, in practice, the issues of violence and harassment in the world of work.

Article 11(b) and (c). Training tools and guidance, and awareness-raising campaigns. The Committee notes the Government’s indication that: (1) the National Employment and Vocational Training Institute (INEFOP) carries out training courses for enterprises and workers on the Convention and that the IGTSS requires that the relevant training is carried out in enterprises; (2) various awareness-raising and training measures have been taken on issues relating to violence and harassment for the competent authorities, such as the committees that deal with cases of sexual harassment, the IGTSS and other State bodies; and (3) the National Institute for Women carries out promotion activities, such as television advertisements and leaflets on sexual harassment. The Committee requests the Government to continue to provide information on the training tools and guidance, and awareness-raising campaigns put in place on the subject of violence and harassment in the world of work, including data on the level of participation of men and women in such initiatives, and the criteria adopted to ensure they are provided in an accessible format.