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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Burkina Faso (RATIFICATION: 1962)

Other comments on C111

Observation

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Legislation. The Committee notes that a draft bill issuing a new Labour Code was adopted by the Council of Ministers on 7 September 2022 and was due to be submitted to Parliament for adoption. The Committee requests the Government to provide information on the adoption of the new Labour Code and to provide a copy (electronic or hard copy) if it has been adopted.

Article 1 of the Convention. Protection against discrimination for workers excluded from the scope of the Labour Code. The Committee recalls that section 4 of the Labour Code of 2008, which is currently in force, prohibits all discrimination in employment and occupation and contains a definition of direct and indirect discrimination, including on the basis of the seven grounds specified in Article 1(1)(a) of the Convention. For public service employees, who are excluded from the scope of the Labour Code (section 3), the provisions relating to protection against discrimination, to which the Government refers in its previous reports, are only concerned with access to employment (recruitment) for employees of the state public service, the regional public service, public establishments and the parliamentary public service. Among other things, these texts do not explicitly refer to any of the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee once again requests the Governmentto provide information on: (i) measures taken or envisaged to extend the protection against discrimination established in the Convention to the categories of workers who are excluded from the scope of the Labour Code, particularly employees in the public service (to this end, it suggests the adoption of provisions explicitly defining and prohibiting any direct or indirect discrimination at all stages of employment, and covering as a minimum all of the seven grounds specified in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction or social origin; (ii) the protection against discrimination afforded in practice to the categories of workers who are excluded from the scope of the Labour Code, indicating the procedure that enables them to assert their rights should they consider themselves to be victims of discrimination; and (iii) the measures adopted or envisaged to ensure that workers in the informal economy also benefit from the protection afforded by the Convention.

Sexual harassment. In its comment adopted in 2012, the Committee noted the Government’s commitment to taking the necessary steps to ensure that hostile work environment sexual harassment is covered by the labour legislation in the forthcoming revision of the Labour Code. The study on bringing the Labour Code into conformity with the fundamental and governance Conventions, undertaken with ILO support in 2014, also underlined the need to amend section 37 of the Labour Code to take account of the Committee’s comments, namely that hostile work environment sexual harassment, and not only quid pro quo sexual harassment, should be covered by the labour legislation. This request was reiterated in the “technical comments on the bill issuing the Labour Code” provided in 2017 at the Government’s request, in which the Office recalled that the definition of sexual harassment contained in section 41(3) of the bill (former section 37(3)) still did not cover sexual conduct which had the effect of creating an intimidating, hostile or humiliating work environment, whether or not the purpose of such conduct was to obtain a sexual favour; and that this provision relating to sexual harassment therefore lacked sufficient scope. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the legislation covers not only quid pro quo sexual harassment but also hostile work environment sexual harassment.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes the Government’s indication that various projects in the field of vocational training have resulted in increased staff numbers (rising from 30,030 in 2015/16 to 32,475 in 2018/19) but points out that at the same time the proportion of the number of girls has decreased (from 43.2 to 37.5 per cent in the same period). The Committee also notes that, in the context of the “Stabilization and development action plan (PA-SD)” of January 2023, particularly “Pillar 3: Refounding the State and improving governance”, one of the actions planned under strategic objective 3.4 “Promoting decent employment and social protection for all, particularly young persons and women” is to “strengthen the legal framework of the labour market”, which seeks to achieve target 8.8 of the United Nations (UN) Sustainable Development Goals (SDGs), namely to protect labour rights and all workers, including migrant workers, in particular women migrants, and those in precarious employment. Moreover, PA-SD strategic objective 3.5 (“Promoting equality of the sexes and autonomy for women and girls”) is aimed at achieving SDG targets 5.1 and 5.5 (“End all forms of discrimination against all women and girls everywhere” and “Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life”, respectively). The Committee also notes that through the Decent Work Country Programme (DWCP) 2020–22, signed by the ILO and the tripartite constituents in Burkina Faso, the latter have pledged to increase the employability of young persons, women and persons with disabilities by 2022 (outcome 2 of the DWCP). The Government also refers in its report, among the measures taken at the national level to apply the Convention, to a “National gender strategy (SNG) 2020–24”, accompanied by an “Operational action plan (2020–22)”, and also a “National strategy for the promotion of women’s entrepreneurship (2016–25)”. The latter notes that women account for more than 60 per cent of production activities in the informal economy but face difficulties regarding access to, and use and control of, resources and benefits of their socio-economic activities. It adds that despite the efforts made by the Government, economic autonomy for women remains a major challenge to be faced. With regard to the SNG 2020–24 – one of whose five strategic components is also concerned with achieving economic autonomy for women and girls – it offers a mixed assessment of the “National policy for the promotion of women (PNPF 2004–10)” in view of the fact that: (1) the justice system has remained largely inaccessible to women; (2) gender inequalities and disparities in occupational segregation have persisted (gender stereotypes still play a significant role in the choice of fields of study, with a tendency to reproduce traditional gender-based divisions relating to work, including in access to technical and vocational education and training); (3) “traditional practices harmful to women” have not been eradicated; (4) women and girls have continued to be the victims of sexual violence; and (5) despite advances observed in the field of education, inequalities remain with regard to access to the factors of production and economic resources. It is indicated in this strategy that there are “a number of forms of social discrimination to the detriment of women and girls and harmful traditional practices which undermine the enjoyment of their fundamental human rights” and that “significant improvements to the situation of women in Burkina Faso and achieving legal equality between men and women are goals that remain to be achieved”. The SNG 2020–24 also notes that between 2010 and 2019 the proportion of women in the public sector increased from 25 to 33.5 per cent, though this figure is still low. The Committee requests the Government to provide information on the measures taken or envisaged to: (i) effectively combat stereotypes and prejudice relating to the roles of men and women in society; and (ii) improve access for women to leadership positions in the public and private sectors. The Committee also requests the Government to provide detailed information, including statistical data, on the impact of measures taken to promote equal access to employment for men and women without discrimination on the basis of sex, including in the context of the Decent Work Country Programme, the “National gender strategy 2020–24” and the “National strategy for the promotion of women’s entrepreneurship (2016–25)”.

National equality policy irrespective of race, colour, religion, political opinion, national extraction or social origin. The Committee notes with regret the Government’s indication in its report that there is no specific national policy to promote equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination. The Committee is therefore bound to recall once again that, under Article 2 of the Convention, the primary obligation of ratifying States is to declare and pursue a national equality policy aimed at eliminating any discrimination in employment and occupation based, at a minimum, on the seven criteria formally prohibited by the Convention. This presupposes the implementation of affirmative programmes, the repeal or amendment of any discriminatory laws or administrative practices, the elimination of stereotyped behaviours and prejudicial attitudes, the promotion of a climate of tolerance and the implementation of a system of monitoring (see 2012 General Survey on the fundamental Conventions, paragraph 844). The Committee once again requests the Government to provide information on the specific measures taken to promote equality of opportunity and treatment in employment and occupation for all, irrespective of race, colour, religion, political opinion, national extraction or social origin, with an indication in particular of whether monitoring mechanisms or specialized bodies have been established.

Article 5. Special measures of protection. The Committee notes the Government’s indication that Decree No. 2009-530/PRES/PM/MTSS/MASSN/MS of 17 July 2009 and Decree No. 2012-829/PRES/PM/MASSN/MEF/MJFPE/MTPEN of 22 October 2012 provide that enterprises with at least 50 employees, on the one hand, and the public service (including state public establishments), on the other hand, are required to reserve at least 5 and 10 per cent of posts, respectively, for persons with disabilities. Furthermore, the Committee recalls that in its previous comment it asked the Government to ensure that, in the context of the current reform of the Labour Code, any restrictions concerning the types of work which may be performed by women are strictly limited to the protection of maternity (section 142 of the Labour Code before revision, and Decree No. 2010-356/PRES/PM/MTSS of 25 June 2010 determining the nature of the hazardous types of work prohibited for women and pregnant women, which the Government once again refers to in its report). Hoping that this request will be taken into account, the Committee requests the Government to provide all relevant information on restrictions concerning the types of work which may be performed by women. The Committee also requests the Government to provide information, including statistical data, on the application in practice of the Decrees of 17 July 2009 and 22 October 2012 and the proportion of posts occupied by persons with disabilities in the public and private sectors.

Enforcement. Labour inspection and the courts. The Committee notes that the administrative or judicial decisions relating to discrimination in employment and occupation referred to by the Government in its report date back more than 10 or even 20 years. The Committee is therefore bound to recall that no society is exempt from discrimination and that the absence of cases of discrimination or complaints may be due, among other factors, to an inappropriate legal framework, lack of knowledge by workers of their rights in this respect, a lack of confidence in the remedies available or difficulties in gaining access in practice to such remedies, or fear of reprisals (2012 General Survey on the fundamental Conventions, paragraphs 731 and 870). In this regard, it notes that the SNG 2020–24 refers, among the deficiencies in implementation of the preceding national gender policy, to: failure to apply favourable laws and regulations systematically and adequately; inadequate financial resources for bodies to operate and for annual action plans to be implemented; and insufficient disaggregated data to document and monitor trends in inequality, thereby making monitoring and evaluation of programmes and projects difficult. The Committee therefore invites the Government to provide information on any measures adopted to improve the capacity of the competent authorities, particularly magistrates and other public officials, to identify and address cases of discrimination, to facilitate access to legal remedies, and to collect data disaggregated by category. The Committee also requests the Government to provide information on the awareness-raising activities undertaken by labour inspectors in relation to equality and action to combat discrimination, and any complaints examined in this regard.