Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1(1)(a) and (b) of the Convention. Grounds of discrimination. Legislation. The Committee notes that the Act of 30 December 2009 issuing various provisions added “trade union beliefs” to the list of grounds of discrimination prohibited by the Act of 10 May 2007 to combat certain forms of discrimination. It also notes the adoption of the Decree of the French Community of 12 December 2008 to combat certain forms of discrimination, repealing the Decree of 19 May 2004, which prohibits any discrimination on grounds of nationality, supposed race, skin colour, national or ethnic extraction or origin, age, sexual orientation, religious or philosophical beliefs, disability, sex and the related criteria of pregnancy, confinement and maternity, as well as sex change, civil status, birth, wealth, political views, language, current or future state of health, a physical or genetic characteristic or social origin. Finally, the Committee notes that the Decree of the Flemish Authorities of 10 July 2008 establishing the framework for the Flemish policy of equality of opportunity and treatment covers the following grounds of discrimination: sex, age, sexual orientation, civil status, birth, wealth, religious or philosophical beliefs, political views, language, state of health, disability, physical or genetic characteristics, social position, nationality, race, skin colour, national or ethnic origin or extraction. The Committee notes this information with interest and requests the Government to provide information on the application of these provisions in practice.

Discrimination on the ground of sex. In its previous comments, the Committee expressed concern at the increasing amount of litigation on grounds of discrimination linked to pregnancy, confinement and maternity. According to the last activities report of the Institute for Equality between Women and Men (IEFH), this trend has been confirmed, as in 2008 the amount of litigation on this issue increased by 44 per cent in relation to 2007. The Committee welcomes the publication in June 2010 by the IEFH of a study entitled “Pregnancy at work: Experience and obstacles encountered by women workers in Belgium”, which gives an overview of the situation. The study concludes that pregnant workers are indeed victims of discrimination at work. It points to a lack of information on the legislation among pregnant women, their colleagues and employers and, as a result, this type of discrimination has become widespread. The Committee further notes that the IEFH has initiated several prosecutions jointly with the plaintiffs in cases where complaints have been made. The Committee requests the Government to provide information on the measures adopted, including those based on the findings and results of the study published by the IEFH, with a view to effectively combating discrimination related to pregnancy, confinement and maternity, including upon return to work following maternity leave. The Government is also asked to continue to provide information on the cases of discrimination related to pregnancy and maternity dealt with by the IEFH and the outcome of the litigation.

Sexual harassment. The Committee requests the Government to provide information on any measure adopted to prevent sexual harassment at the workplace and to combat this discriminatory practice, and on any complaint of sexual harassment at work dealt with by the IEFH or the judicial authorities.

Articles 2 and 3. Promoting equality between men and women in employment and occupation. The Committee notes that, according to the statistics published by the IEFH in the publication entitled Femmes et hommes en Belgique, 2006 edition, the proportion of men on the labour market is clearly higher than that of women (73.6 per cent compared with 58.3 per cent). These data also show a persistence of the horizontal and vertical segregation of men and women, as men and women are concentrated in different occupations and sectors and women are under-represented in managerial positions. While noting the many awareness-raising activities undertaken by the IEFH, the Committee requests the Government to provide information on the specific measures adopted or envisaged to combat occupational segregation between women and men in the labour market, and particularly the measures adopted in the field of vocational guidance and training. It also requests the Government to provide recent statistics on the participation of women and men in the labour market by economic sector.

Employment of women in the public service. The Committee notes the information provided by the Government according to which various activities have been undertaken by the federal administration or are currently being implemented (the operation of the Felink network, the “Top Skills” project) with a view to increasing the participation of women in positions of responsibility in the public service. According to Government data, the proportion of women entering competitions for positions of responsibility has increased (by 9 per cent for French-speaking positions and 3 per cent for Dutch-speaking positions), and the participation of women in these positions increased on average from 13.73 per cent in 2007 to 14.61 per cent in 2009. Taking due note of this information, the Committee encourages the Government to pursue and intensify its efforts to encourage the access of women to high-level positions in the public service. The Government is requested to continue providing information on the measures adopted in this respect and on their impact on the employment of women in the public service.

Discrimination on grounds of race, colour or national extraction. The Committee notes that in 2008 the Centre for Equal Opportunities and the Fight against Racism (CECLR) dealt with 380 new cases reported in the context of labour and employment (working conditions, recruitment and dismissal) and that half of these cases concerned grounds prohibited by the Act of 10 May 2007 to combat racism. According to the Government’s report, jobseekers with other ethnic origins are often confronted with involuntary and indirect forms of discrimination. The report emphasizes that a large number of job vacancies continue to ask for candidates whose mother tongue is French or Dutch, when in fact what is being sought is applicants with a very good command of one or other of these languages. In its report on Belgium, adopted on 19 December 2008, the European Commission against Racism and Intolerance (ECRI) also emphasized “the persistence of racial discrimination in employment, whether it is direct or indirect and whether it relates to access to employment or to conditions of employment (CRI (2009) 18)”. The Committee also notes that strengthened collaboration between the CECLR and the labour inspectorate, resulting in a greater number of inspections of employment agencies and temporary work agencies, has led to the identification of cases of discrimination based on ethnic origin, race and colour. Moreover, since the beginning of 2009, the CECLR has opened 48 cases of reported discrimination concerning temporary work and employment agencies, whether or not the discrimination was at the instigation of the client enterprises. With regard to the action taken at various levels to promote equality between workers without distinction on grounds of race, colour or national extraction, the Committee notes the Government’s indications concerning the “Equality and diversity” label according to which the project is being continued and the annual verification of the implementation and improvement of the action taken at the enterprise level to promote diversity is carried out by means of external audits. It also notes the many awareness-raising and training activities undertaken by the CECLR and its recommendations and opinions, intended for political decision-makers as well as the social partners. The Committee once again requests the Government to provide information on the following points:

(i)    the implementation of the CECLR’s triennial strategic plan 2008–10 and its impact;

(ii)   the implementation and results achieved by the action plan for diversity to promote ethnic minorities in four industrial sectors in Flanders; and

(iii)  any other measure taken to ensure that ethnic minorities have equal access to vocational guidance and training and to placement services in the private and public sectors.

Affirmative action measures. The Committee notes that the anti‑discrimination laws of 10 May 2007 envisage the adoption of royal orders to determine the cases and conditions in which affirmative action measures to prevent or compensate for disadvantages in relation to one of the protected criteria may be implemented. The Committee requests the Government to provide information on the adoption of these orders and on the implementation of any affirmative action measures intended to ensure full equality in practice and their impact.

Collaboration with the social partners. The Committee notes that on 10 October 2008 workers’ and employers’ organizations in the National Labour Council concluded collective agreement No. 95 respecting equality of treatment at all stages of the employment relationship. The Committee observes that this collective agreement defines equality of treatment as being “the absence of any discrimination on grounds of age, sex or sexual orientation, civil status, medical background, race, colour, national or ethnic extraction or origin, political or philosophical beliefs, disability, membership of a trade union organization or of any other organization”. On that date, the social partners also concluded a collective agreement amending collective agreement No. 38 of 6 December 1983 on the recruitment and selection of workers with a view to adapting its clauses respecting equality of treatment and annexing a “Code of practice on equality of treatment in the recruitment and selection of workers”, which emphasizes the will of the social partners to reinforce the “participation of groups at risk on the labour market” and to work for diversity. The Committee notes that the code contains recommendations intended for joint commissions (awareness raising and dissemination of good practices) and individual employers, who are invited to comply with a number of guidelines concerning, among other matters, recruitment channels and procedures (neutrality of vacancy announcements, reasonable adaptations for persons with disabilities, etc.), the specified requirements of the job, evaluation and possible complaints by applicants. The Committee notes that in August 2010 the CECLR issued recommendations intended for the social partners and the Ministry of Employment and Equality of Opportunity calling for the code of practice annexed to collective agreement No. 38 to be wholly reviewed and supplemented with a view to its attachment to collective agreement No. 95 so that it covers all stages of the employment relationship. While welcoming the initiatives taken by the social partners for the promotion of equality, the Committee invites the Government to take the necessary measures to encourage the social partners to review the list of prohibited grounds of discrimination so as to include religion and social origin, and requests it to indicate any developments in this respect. It requests the Government to provide information on the action taken as a result of the CECLR recommendation concerning the formulation of a code of practice to be appended to collective agreement No. 95 with a view to preventing discrimination at all stages of the employment relationship. Finally, please provide information on any measures adopted to combat discrimination and promote equality in employment and occupation under the terms of the inter-occupational agreement 2009–10.

Promoting equality when granting contracts involving public expenditure. The Committee notes the detailed information on the activities carried out by the IEFH following the adoption of the Act of 12 January 2007 on gender mainstreaming in all federal policies with a view to the provision of training, raising the awareness of politicians and those responsible for federal administrative services, and the development of specific tools (implementation manual, databases, etc.). The Committee also notes the adoption on 26 January 2010 of the Royal Order issued under the above Act respecting the inter-departmental coordination group, sections 9 and 10 of which determine the content of “intermediary reports and reports upon the completion of the legislature”, with the objective of describing the progress achieved and the difficulties encountered in the application and formulation of recommendations to improve the implementation of the Act. The Committee requests the Government to continue providing information on the implementation of the Act of 12 January 2007, with particular reference to the following:

(i)    its impact on compliance in practice with the principle of equality between men and women in the granting of contracts involving public expenditure, in accordance with Paragraph 3(b) of the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111);

(ii)   the implementation of the “gender test” envisaged by the Act with a view to evaluating the impact of draft laws and regulations on the respective situation of women and men;

(iii)  the appointment and activities of gender mainstreaming coordinators responsible for monitoring the process of gender mainstreaming in public contracts; and

(iv)  the recommendations made in the interim reports and reports at the end of the legislature to improve the effect given to the Act and the action taken as a result.

Supervising the application of anti-discrimination legislation and complaints. The Committee notes the detailed information provided by the Government on the complaints received by the labour law monitoring authority (the labour inspectorate), the CECLR and the IEFH and observes that the number of complaints of discrimination dealt with by the labour inspectorate is very low (18 complaints between 1 June 2007 and 31 May 2009). The Committee also notes that, under the terms of the three Orders of 24 October 2008 adopted under the anti-discrimination Acts of 10 May 2007, the executive assistants, technical experts and advisers responsible for monitoring in the General Directorate of the Labour Inspectorate of the Federal Public Employment, Labour and Social Dialogue Service have been made responsible for monitoring compliance with these laws. The Committee requests the Government to provide information on the supervision of the implementation of anti-discrimination legislation by the labour inspectorate and any measures taken to build capacity in this regard (training of labour inspectors, inspections, cases of discrimination identified, etc.). The Government is also requested to continue providing information on the number and nature of the complaints of discrimination in employment and occupation received by the CECLR, the IEFH and the labour inspectorate, with an indication of the action taken on the complaints.

Statistics. The Committee notes that the creation of a system of “macro” socio-economic monitoring to determine the stratification of the labour market by the origin of persons, based on the CECLR proposal, is still under way. The Committee requests the Government to provide information on the implementation of the system of “macro” socio-economic monitoring and its operation and to provide the statistical data compiled on the composition of the workforce disaggregated by gender and origin.