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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Sri Lanka (RATIFICATION: 1998)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) of the Convention. Discrimination based on religion or social origin. The Committee notes the Government’s indication that there is no recent study or survey conducted with the involvement of the Government to assess the nature and extent of discrimination on the ground of caste or religion in employment and occupation. The Government also indicates that the creation of the central monitoring body to collect disaggregated data on the socio-economic situation and representation in education, employment, and public and political life of ethno-religious minorities, which was envisaged under the National Action Plan for the Protection and Promotion of Human Rights for 2017–21, has not yet taken place. The Committee recalls the concerns expressed by the High Commissioner for Human Rights about the trend towards ethno-religious majoritarianism, which was undermining human rights and reconciliation (A/HRC/51/5, 4 October 2022 paragraph 27) Recalling the absence of legislative provisions addressing discrimination based on religion or social origin specifically in employment and occupation, the Committee reiterates its request for information on any steps taken to effectively protect workers against discrimination on the basis of religion and social origin both in the private and public sectors, including measures to combat prejudice and stereotypes. It also asks the Government to indicate how it ensures that all workers or prospective workers can obtain redress for discrimination on the basis of these grounds at all stages of employment. The Committee encourages the Government to conduct a study, in collaboration with the social partners and the interested groups, on the situation in education, vocational training and employment and occupation of ethno-religious minorities and to provide information on its findings and the ways forward that are envisaged. The Government is also asked to provide updated information on the process of creation of the central monitoring body on ethno-religious minorities.

Discrimination based on sex. Restrictions on women’s employment. The Committee recalls that, following discussions held within the National Labour Advisory Council (NLAC), it was decided to amend the Shop and Office Employees Act to allow women to work at night in the Information Technology–Business Process Outsourcing (IT–BPO) while providing transport facilities, health-care services and other required facilities. In the absence of information in its report in this regard, the Committee requests once again the Government to provide updated information on: (i) any progress made towards the amendment of the Shop and Office Employees Act regarding the hours of work of women; and (ii) any accompanying measures taken to protect the health and security of night workers. The Government is requested to supply a copy of the amendments once adopted.

Sexual harassment. With regard to the clarification of the scope of section 345 of the Penal Code covering sexual harassment as regards the expression “a person in authority” used in the “explanation part” of the Code, the Committee notes the Government’s indication that the Penal Code covers all types of sexual harassment and emphasizes that section 345 refers to “whoever [..]sexually harasses another person or [..] causes sexual annoyance or harassment to such other person [..]”. At the same time, the Committee recalls the “explanation” under section 345 that the offence of sexual harassment consists of unwelcome sexual advances by words or action used by “a person in authority”, which is narrower than “whoever” referred to in the provision. The Committee recalls that the scope of liability should include and co-workers and, where possible, clients or other persons met in connection with performance of work duties (General Observation 2002). The Committee welcomes the information provided by the Government about: (1) the establishment of anti-harassment committees in government organizations as well as in private companies, including factories in the export processing zones (EPZ), to prevent sexual harassment in the workplace; (2) the development of draft guidelines to address sexual harassment in government organizations and their submission to the Human Rights Commission of Sri Lanka for review; and (3) awareness-raising activities undertaken to encourage women to make complaints about sexual harassment. The Committee would also like to recall that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof, and the fact that criminal law generally does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (2012 General Survey on the fundamental Conventions, paragraph 792). Therefore, the Committee asks the Government to take the necessary steps to consider the adoption of specific labour legislation that clearly define and explicitly prohibit all forms of sexual harassment in the workplace (both quid pro quo and hostile environment harassment) and provide information on any progress made in this regard.It also asks the Government to provide information on : (i) the practical application of section 345 of the Penal Code, including any relevant court decision, in order to clarify whether, in practice, the scope of this provision covers also sexual harassment by co-workers, clients and other persons met in connection with the performance of work duties; (ii) the action taken by the anti-harassment committees; (iii) the content of the guidelines to address sexual harassment in the workplace, once they are adopted; (iv) any measure adopted to prevent and address sexual harassment at the workplace under the National Policy on Gender Equality and Women's Empowerment and the National Plan of Action to address Sexual and Gender-based Violence for 2016–20; and (v) the number of complaints concerning sexual harassment in the workplace lodged, penalties imposed and compensation awarded, including in the context of unjustified termination.

Migrant women workers. Referring to its previous comments, the Committee notes the information provided by the Government about: (1) the various assessments made of the impacts of the Family Background Report (FBR) Regulation on the access of female migrant workers to employment abroad; and (ii) the rejection by the Cabinet of the proposal to remove the FBR highlighting the likely consequences on young children. The Government also indicates that: (1) at present, eligible female migrant workers without children are exempted from the FBR, while women with children have to submit the FBR with a care plan which will be examined by a dedicated committee and an appeal system is available; and (2) on average, 70 per cent of the appeals are granted, following the development of a family care plan. The Committee requests the Government to review the Family Background Report (FBR) Regulation in order to ensure that both men and women fully enjoy equality of opportunity and treatment in employment and occupation, including the opportunity to seek employment abroad if they so wish, while the necessary protection is provided to left-behind children of both men and women migrant workers. It asks the Government to provide information on any progress made in this regard.

Article 2. National equality policy. The Committee reiterates its request for information on the concrete steps taken or envisaged to ensure and promote equality of opportunity and treatment for all workers in employment and occupation, including information on any significant results achieved in this regard under the National Action Plan for the Protection and Promotion of Human Rights for 2017–21, including any legislative and policy review conducted and follow-measures taken.

Equality of opportunity and treatment between men and women. The Government informs that the female labour force participation rate in 2019 was 34.5 percent. The Government explains that the wide gender gap showed by this figure is in part due to the statistical invisibility of women working in the informal sector. The Committee notes that women represented: 47.1 per cent of the workforce in the service sector; 28.4 per cent in agriculture; 27.6 per cent in the service sector; and 54.44 per cent in the public service. The Government indicates that the number of women holding managerial positions is increasing and that higher educational achievements of women have contributed to this progress. However, there exist a gender gap at the highest decision-making level. Concerning the Women’s Commission Bill, the Committee notes that the Bill has been reviewed by the Attorney General and a committee has been created with the aim of examining all the recommendations received. The Committee welcomes the launching in March 2023 of the National Policy on Gender Equality and Women's Empowerment, which establishes a framework to guide and standardize the development of laws, policies, programs and mechanisms in all spheres and structures of government as well as in the public and private workplace, community, family and within the civic space. In particular, the Committee notes that the National Policy sets out to: (1) to increase women’s participation in the formal employment sector and recognize the contribution of women working in the informal sector and women’s role in care work; and (2) to ensure equal opportunities and benefits, legal safeguards, access to training, skill development and digital innovation, special protections and access to social security for all women and gender minorities in the formal and informal employment sectors. It also includes ensuring a gender responsive education system, vocational education and training for women and gender minorities and access to adult education for women. The Committee requests the Government to provide detailed information on the measures taken under the National Policy to: (i) increase women’s participation in the formal employment sector and recognize the contribution of women working in the informal sector and women’s role in care work; (ii) ensure equal opportunities and benefits, legal safeguards, access to training, skill development and digital innovation, special protections and access to social security for all women and gender minorities in the formal and informal employment sectors; (iii) promote women’s and girls’ increased school enrolment, retention and completion and access to vocational trainings, particularly in fields traditionally dominated by men; and (iv) address the persisting negative impacts of the COVID-19 pandemic on women’s access to decent work. Referring to its previous comments, the Committee also requests the Government to provide: (i) updated information on the status of the adoption of the Women’s Commission Bill and supply a copy of this piece of legislation once adopted; and (ii) updated statistical information on the participation of men and women in education, training and employment, both in the public and private sectors, including in the informal economy as available.

Enforcement and awareness-raising. The Committee notes the information provided by the Government about the steps taken to review school textbooks to ascertain to what extent gender equality was reflected in them and to address gender stereotyping and discrimination in the media. Referring to its previous comments, the Committee notes that the United Nations High Commissioner for Human Rights recommended that the Government should undertake a broad-based consultative process representative of all Sri Lankans to advance constitutional reforms that guarantee the independence of key institutions, including the judiciary and the Human Rights Commission of Sri Lanka (A/HRC/51/5, 4 October 2022, paragraph 71). The Committee again requests the Government to provide information on : (i) any steps taken to ensure that the judiciary is fully independent as well as other key enforcement institutions, including the Human Rights Commission; (ii) the measures taken to raise awareness of the principle of non-discrimination and equality among workers, employers, their representatives and enforcement authorities; (iii) the number and nature of any cases of discrimination dealt with by the Labour Inspectorate, the Human Rights Commission, the courts or any other competent authorities, the sanctions imposed and remedies granted; and (iv) the number and nature of employment discrimination cases that have been handled by the Supreme Court pursuant to articles 12(1) and 17 of the Constitution, and their outcome, as well as copies of any relevant judicial decisions.