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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Chile (RATIFICATION: 1971)

Other comments on C111

Observation

Direct Request

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Article 1 of the Convention. Grounds of discrimination. Legislation. The Committee recalls that in its previous comments it recalled that: (1) Act No. 20,609 does not explicitly include colour, national extraction and social origin among the prohibited grounds of discrimination; and (2) section 2 of the Labour Code prohibits discrimination on the basis of all the grounds set out in Article 1(1)(a) of the Convention, including colour, national extraction and race. The Committee notes the information provided by the Government in its report on the draft legislation to amend Act No. 20,609 (Bulletin No. 13867-17), which: (1) recognizes various prohibited grounds of discrimination, including social origin, cultural identity, sexual and emotional orientation, sexual characteristics, educational level, the situation of migrant, refugee, repatriated, stateless or internally displaced persons, genetic characteristics, mental or physical health, seropositivity status, the occupation or trade that is or has been exercised, and the fact of being or having been imprisoned; and (2) explicitly recognizes direct, indirect, multiple or aggravated, and structural discrimination. While noting with interest the inclusion of “social origin” and other prohibited grounds of discrimination in the draft legislative text, the Committee observes that it does not specify “colour” or “national extraction”. The Committee also notes that, according to the statistics provided by the Government, between 2018 and 2022, the Labour Department investigated 39 cases of discrimination on grounds of “race or colour”, as well as 14 cases of discrimination on grounds of “national extraction or social origin”. The Committee requests the Government to provide information on: (i) the progress achieved in the reform of Act No. 20,609 (Bulletin No. 13867-17); and (ii) whether consideration has been given, or it is planned to consider the inclusion of “colour” and “national extraction” in the Act when it is revised.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes with interest the Government’s indication in its report concerning the adoption of Act No. 21,369 of 30 August 2021 regulating sexual harassment, violence and gender discrimination in higher education, section 2 of which includes sexual harassment which creates an intimidatory, hostile or humiliating environment, or which may threaten, prejudice or affect the opportunities, material conditions or occupational or academic performance of a person. With reference to other legislative developments, the Committee also notes that: (1) the 2013 Bill which proposed to include sexual harassment in the Penal Code has been shelved (Bulletin No. 8802-18), and two other draft legislative texts are currently under examination (Bulletins Nos 11907-17 and 14533-07); (2) the Bill on the right of women to a life free from violence (Bulletin No. 11077-07) is at the stage of the second constitutional procedure; and (3) an amendment to the Labour Code is currently under examination to require employers to develop protocols for the prevention and protection of workers against sexual harassment (Bulletin No. 12257-13). The Committee recalls that section 2 of the Labour Code, as amended in 2005, does not provide adequate protection against sexual harassment in employment and occupation, as it does not clearly cover sexual harassment which involves the creation of a hostile working environment through types of behaviour other that “requirements of a sexual nature”, such as images, comments, jokes or gestures. Moreover, as it is in the context of “labour relations”, it is not clear whether this provision covers: (1) sexual harassment by third persons (such as clients or suppliers); and (2) all aspects of “employment and occupation”, as defined in Article 1(3) of the Convention, including access to training and employment. The Committee further observes that, according to the data of the Labour Department, a total of 593 complaints of sexual harassment were made in 2021 and 804 complaints in 2022. While welcoming the legislative efforts made by the Government in relation to sexual harassment, the Committee requests it to provide information on any measures adopted to ensure that section 2 of the Labour Code defines and prohibits sexual harassment: (i) in all its forms, including sexual harassment involving the creation of a hostile working environment; (ii) that is committed by third parties, such as clients or suppliers; and (iii) in all aspects of employment and occupation. It also requests the Government to provide information on cases of sexual harassment that have been dealt with by the competent authorities, and on any compensation granted and penalties imposed.

Articles 1(1)(b) and 2. Discrimination on the ground of disability. The Committee notes the information provided by the Government on the current process of the examination of a Bill to amend various legislative provisions respecting the validation and equivalence of studies undertaken in special educational establishments (amended Bulletins Nos 13011-11, 14445-13 and 14449-13). The Committee also recalls that in its latest comment on the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), it examined the evaluation of Act No 20,015 and noted: (1) the low level of compliance with Act No. 20,015 in practice; (2) two Bills under examination to improve the application of the Act and increase the quota for the recruitment of persons with disabilities to 4 per cent; (3) Act No. 21,275 of 2020, which requires enterprises with over 100 workers to adopt measures to facilitate the labour inclusion of persons with disabilities; and (4) various training and promotional activities undertaken by the National Disability Service (SENADIS). The Committee notes this information, which responds to the issues raised in its previous direct request.

Sexual orientation and gender identity. The Committee observes that, according to the statistics provided by the Government, between 2018 and 2022, the Labour Department dealt with 76 complaints and investigated 73 cases of discrimination on grounds of sexual orientation, as well as 40 complaints and 40 cases of discrimination on grounds of gender identity. The Committee requests the Government to provide information on the results of the investigations carried out, the penalties imposed and the remedies granted in cases in which the existence of discrimination on grounds of sexual orientation and gender identity has been confirmed.

Article 2. National equality policy. The Committee observes that the United Nations Committee on the Elimination of Racial Discrimination recommended expediting the adoption of the Bills to establish the National Council of Indigenous Peoples and the Councils of Indigenous Peoples (Bulletin No. 10526-06) and the Ministry of Indigenous Peoples (Bulletin No. 10687-06), which had both been sent to Congress in 2016 (CERD/C/CHL/CO/22-23, of 13 September 2022, paragraphs 14 and 15). The Committee once again requests the Government to provide information on the specific measures and plans adopted or envisaged to combat discrimination on the basis of all the prohibited grounds of discrimination, and particularly racial discrimination, especially against indigenous peoples, including information on the effectiveness of the measures taken and the results achieved.

Promotion of equality between men and women in employment and occupation in the public and private sectors. In response to its previous comment, in which it requested information on the Bill on child day care centres and on the effect given in practice to Acts Nos 20595 (employment subsidies for women), 20455 (postnatal parental leave in co-participation with the father) and 20399 (coverage of childcare centres), the Committee observes that: (1) the Bill on access to childcare centres (Bulletin No. 14782-13) is still under examination; (2) according to the annual statistics of the social security system, 209,733 employment subsidies for women were granted in 2021 and postnatal parental leave was taken in 77,957 cases; and (3) according to the information published by the Subsecretariat for Social Insurance, during the first seven years of the application of Act No. 20545, only 0.2 per cent of postnatal leave was taken by men. The Committee also notes that, in addition to the National Plan for Equality between Women and Men 2018-30, the National Labour Equity Plan 2021-30 was published in 2022, which seeks an increase in the labour participation of women and an improvement in their conditions in the world of work, and is structured around four pillars (societal, employability, integration and entrepreneurship, and the labour market). With regard to the situation of women in the public sector, the Committee notes that, according to the information published by the civil service, women account for 60 per cent of State administrative personnel and 30 per cent of higher managerial positions, and that these figures are not very different from those examined in 2017. The Committee also notes the existence of the programme “+Women, Leadership in the Public Sector”, a mentorship programme to promote the participation of women in positions of responsibility and leadership in the public sector.

The Committee further notes that, in its report submitted to the Committee on the Elimination of Discrimination against Women, the Government provided information on the adoption of a series of measures to: (1) promote the access of women to male-dominated sectors, high management positions and the digital economy (including specific programmes, public-private round tables with key sectors and registers of women seeking high management positions); and (2) establish a national care and support system, a childcare subsystem and Act No. 21155 on the protection of maternal nursing (CEDAW/C/CHL/8, of 16 May 2022, paragraphs 116 and 117). The Committee welcomes the many efforts made by the Government to promote the reduction in occupational gender segregation and the reconciliation of work and family life, and requests it to provide detailed information as a basis for assessing their impact, including: (i) statistical data on the labour participation of men and women, disaggregated by sex, sector, occupation and hierarchical level; and (ii) the number of men and women workers taking postnatal parental leave and other measures provided by care systems.

Application in practice of the procedure for the protection of fundamental rights. The Committee notes the information provided by the Government on a court ruling in the context of a case under the procedure for the protection of fundamental rights in which a case was identified of discrimination on grounds of maternity. The Committee also notes the Annual Judicial Statistics Report 2020 of the National Statistical Institute, according to which 13.9 per cent of completed labour cases were submitted under the procedure for the protection of fundamental rights. The Committee once again requests the Government to provide information on the procedure for the protection of fundamental workers’ rights in cases of alleged labour discrimination, together with an evaluation of the general operation of the procedure, including the number of complaints made within the context of the procedure, the reasons for the complaints, the outcomes and the penalties imposed.