CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Bosnia and Herzegovina (RATIFICATION: 1993)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. Legislative developments and awareness-raising. The Committee notes with interest the Law on Protection from Workplace Harassment No. 90/21 of the Republika Srpska, adopted on 30 September 2021. It notes that, according to the Government, the law applies regardless of the character of the property and forms of organizing, to the public and private sectors and to all persons, not just employees. The Committee notes however that the law includes a definition of “sexual harassment” that does not explicitly cover quid pro quo sexual harassment. The Committee further notes from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) that one in six employees has experienced sexual harassment in the workplace (CEDAW/C/BIH/CO/6, 12 November 2019, paragraph 35). The Committee recalls that without a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment (see 2012 General Survey on the fundamental Conventions, paragraph 791). Noting that the definition of sexual harassment in the Law on Protection from Workplace Harassment of the Republika Srpska is similar to the definitions in the Law on Labour of the Federation of Bosnia and Herzegovina (FBiH), the Law on Gender Equality in Bosnia and Herzegovina, and the Law on the Prohibition of Discrimination of Bosnia and Herzegovina, the Committee asks the Government to consider taking steps to ensure that these laws include an explicit definition and prohibition of both quid pro quo and hostile environment sexual harassment in employment and occupation. It further asks the Government to provide information on the practical measures taken at the Federal level or by the FBiH, the Republika Srpska and the district of Brcko to prevent and address sexual harassment at work, including though training and awareness-raising activities and the establishment of appropriate complaint mechanisms and adequate sanctions.

Article 1(1)(a). Discriminatory job advertisements. The Committee notes that the Government did not respond to its request to provide information on discriminatory job advertisements based on national extraction and religious belief. The Committee again asks the Government to provide information on any measures taken to ensure that the existing laws against discrimination in employment and occupation provide effective protection against discriminatory job advertisements in practice, including on the grounds of national extraction and religion.

Articles 1(1)(a) and 2. Equality and non-discrimination on the grounds of race, colour or national extraction. Roma. The Committee notes that the Government does not provide information on the status, implementation and results of the action plans and programmes aimed at promoting equality of opportunity and treatment for the Roma in employment and occupation, and in vocational training and education. It further notes that the United Nations Committee on Economic, Social and Cultural Rights (CESCR) expressed concerns at reports of discrimination in the employment process based on ethnic origin and political opinion (E/C.12/BIH/CO/3, 11 November 2021, paragraph 26). Furthermore, the Committee notes from the national report submitted to the Human Rights Council, the adoption of the Third Roma Action Plan on Housing, Employment and Health Care for the period 2017-2020 and the Framework Plan on Roma Educational Needs for the period 2018-2022 (A/HRC/WG.6/34/BIH/1, paragraph 4). The Committee asks the Government to provide specific information on:

(i)statistical data, disaggregated by sex, on the situation of Roma people in education, vocational training and employment; and
(ii)the results achieved and assessments made of the above action plans with respect to education, training and employment and occupation.

Article 1(1)(a). Sexual orientation and gender identity. The Committee notes with interest the adoption of the 2021-2024 Action Plan for the Promotion of Human Rights and Fundamental Freedoms of LGBTI People in Bosnia and Herzegovina. The Committee asks the Government to provide information on the content of the Action Plan in relation to the protection of LGBTI persons against discrimination and the promotion of equal treatment in employment and occupation, including any awareness-raising activities, and the implementing measures taken or envisaged.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee notes with interest the adoption of the Strategy for advancement of rights and status of persons with disabilities in the FBiH (2016-2021), which provides for activities regarding inclusive education systems and enhanced employment and self-employment opportunities for persons with disabilities, such as encouraging social, cooperative and female entrepreneurship, creating a network of centres for vocational rehabilitation and improving legislative framework towards more efficient employment of persons with disabilities. However, the Committee notes that the United Nations Committee on the Rights of Persons with Disabilities (CRPD), in its concluding observations, expressed concern at: (1) the lack of systematic application of the anti-discrimination legislation; (2) the lack of a clear definition of disability-based discrimination; (3) the lack of data on efficient protection of employees with disabilities from dismissal; (4) the insufficient provision of reasonable accommodation; and (5) the lack of adequate and transparent funding and employment-related measures for women with disabilities (CRPD/C/BIH/CO/1, 2 May 2017, paragraphs 10, 12, 46 and 48). The Committee also notes that the CESCR is concerned about the persistently high level of unemployment among persons with disabilities; the poor implementation and effectiveness of the quotas for the employment of persons with disabilities, including the reportedly high non-compliance of employers, particularly government institutions; the absence of mechanisms for the collection of special contributions by employers who fail to comply with the quotas; and the absence of data on the implementation of the quotas (E/C.12/BIH/CO/3, 11 November 2021, paragraph 28). The Committee therefore asks the Government to provide information on the implementation of quotas for persons with disabilities in the public and private sectors and of the Strategy for advancement of rights and status of persons with disabilities in the FBiH (2016-2021) and the results achieved with respect to employment and occupation, disaggregated by sex.

Article 1(2). Inherent requirements of the job. Despite its repeated requests, the Committee notes that the Government did not provide information on the interpretation and application of section 5 of the Act on the Prohibition of Discrimination of Bosnia and Herzegovina which appears to be broader than what is permitted under Article 1(2) as it refers to distinctions, exclusions or advancement “in compliance with doctrines, basic presumptions, dogmas, beliefs or learning of an actual confession or religion”. The Committee recalls that the exception under Article 1(2) of the Convention is to be interpreted restrictively. The Committee asks once again the Government to provide information on the application in practice of section 5 of the Act on the Prohibition of Discrimination of Bosnia and Herzegovina, providing examples of exceptions permitted.

Article 2. National equality policy. Gender equality. The Committee notes the information provided by the Government from the Federal Institute for Statistics for the period from 2017 to 2021, and in particular that the employment rate for men is 51 percent for men and 25.2 per cent for women and that the unemployment rate for women is much higher at 25.5 percent compared with 15 percent for men. The Committee notes the information provided by the Government on the implementation of the Gender Action Plan of Bosnia and Herzegovina 2018-2022 in the FBiH, including the following activities: (1) gender analysis of strategies, policies, programs and projects in the area of the labour market, employment and approach to economic resources by the Gender Centre of the FBiH; (2) funds allocated by the Federal Employment Office exclusively for the development of women’s entrepreneurship; (3) the publication by the Federal Institute for Statistics of “Women and Men in FBiH” containing statistical data on the participation of women and men in the labour market; (4) the creation by the Chamber of Commerce of FBiH of the “B2B platform for online business meetings and networking of female entrepreneurs and women in business”; (5) the project “Empowered women for strong communities – support for an incentive environment for the development of female entrepreneurship in the FBiH”; (6) the creation of Clubs of female entrepreneurs in 6 municipalities; (7) support provided to an increased number of female farmers for rural development. The Committee further notes that the CESCR expressed concern about the large disparities between men and women in terms of labour market participation and employment (E/C.12/BIH/CO/3, paragraph 24). It notes, from the Universal Periodic Review that the Ombudsman Institution for Human Rights of Bosnia and Herzegovina (IHROBiH) reported that: (1) there was no adequate progress to achieve equality between men and women in the labour market; (2) pregnant women have been fired and others continued to work in a parallel economy, therefore not integrated in the formal labour market. (A/HRC/WG.6/34/BIH/3, 14 August 2019, paragraph 10). The Committee asks the Government to provide information on the results achieved following the Gender Action Plan of Bosnia and Herzegovina 2018-2022, and on any further activities planned aimed at reducing gender stereotypes and prejudices regarding the role of women in the labour market and the family, and at increasing the participation of women in the labour market at all levels, and to promote their employment in management and decision-making posts.

Article 3(a). Cooperation with workers’ and employers’ organizations and collective agreements. Noting that the Government did not provide any information in this regard, the Committee again asks the Government to provide information on:

(i)the activities of the Economic and Social Councils of both the FBiH and the Republika Srpska with respect to discrimination and equality in employment and occupation;
(ii)the initiatives taken by workers’ and employers’ organizations to promote the principle of the Convention; and
(iii)examples of collective agreements addressing non-discrimination on at least the grounds set out in Article 1(1)(a) of the Convention.

Enforcement and awareness-raising. The Committee notes the Government’s indication that within the Republic of Srpska there is no data regarding disputes before courts related to the application of the Convention. It further notes that the Human Rights Ombudsman of Bosnia and Herzegovina (IHROBiH) emphasizes that: (1) when it comes to the use of the mechanism of court protection, there is a problem in the judiciary related to the length of the proceedings, and the efficiency of this mechanism is questionable; and (2) when the court considers a case and the Institution of the Ombudsman has already made a decision, the court is obliged to consider the recommendations of the Ombudsman. The Committee notes from the 2020 Ombudsman’s Annual Report on the Occurrences of Discrimination in Bosnia and Herzegovina that a total of 288 cases were registered with the IHROBiH in 2020 relating to the Prohibition of the Discrimination Act and 31 cases were brought to the Department for the Elimination of All Forms of Discrimination. The Committee asks the Government to provide information on:

(i)the steps taken to ensure the effectiveness of the complaints and redress mechanism in relation to discrimination in employment and occupation;
(ii)the number, nature and results of complaints received under the Law on Gender Equality in relation to discrimination;
(iii)the number and nature complaints for discrimination on grounds other than sex dealt with by the courts or the labour inspectors;
(iv)the measures taken or envisaged to ensure the protection afforded by the Gender Equality Agency and the Gender Centres, as well as the difficulties faced by workers, in bringing complaints for discrimination.