Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Gambia (Ratification: 2000)

Other comments on C111

Observation

Direct Request

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Article 1(1)(b) of the Convention. Additional grounds of discrimination. HIV and AIDS. Legislative developments. The Committee notes the Government’s indication that the HIV and the AIDS pandemic are growing in Gambia and their impact on the labour force, although not documented, could be serious. The Committee also notes that with support of international agencies and non-governmental organizations, under the new National Employment Policy (NEP), and National Employment Action Plan (NEAP), launched for the period 2010–14, the Government is intensifying efforts to better address the issue through awareness-raising campaigns. The Government states that controlling HIV and AIDS in the workplace forms one of the principles underlying the NEP. The Government also indicates that there have been no cases brought pursuant to section 141 of the Labour Act of 2007, which prohibits discrimination based on “actual, perceived or suspected HIV and AIDS status of a person”. The Committee asks the Government to provide information on the practical application of section 141 of the Labour Act of 2007. The Committee also asks the Government to provide specific information on the awareness-raising activities on HIV and AIDS, in particular with relation to promoting of equality of opportunity and treatment in employment and occupation irrespective of HIV status. Please also provide specific information on the measures taken under the NEP and the NEAP with respect to discrimination based on HIV status, and the results of such measures.

Sexual harassment. The Committee had previously noted the absence of legal provisions on sexual harassment in the Labour Act of 2007. The Committee notes the Government’s indication that the Labour Act implicitly prohibits any form of sexual harassment and that, in cases where an employee resigns due to sexual harassment, the employee may have a claim for constructive dismissal. The Government also indicates that employers who do not take action to prevent or stop sexual harassment may be held liable when it arises from management or employees, and that redress from the employer’s act or omission is generally in the form of compensation for the employee. The Committee recalls the importance of adopting explicit provisions defining and prohibiting both quid pro quo and hostile environment sexual harassment in order to properly address this form of sex discrimination. The Committee considers that, without a clear definition and prohibition of both quid pro quo and hostile environment sexual harassment, it remains doubtful whether the legislation is effectively addressing all forms of sexual harassment. The Committee also notes that, pursuant to the present system, the harassed employee is required to resign before redress can be obtained which is limited to compensation. The Committee considers that providing the possibility of resigning and receiving compensation as the sole remedy for victims of sexual harassment is not sufficient protection for the victim, and in fact penalizes them and could dissuade victims from bringing cases. The Committee asks the Government to take steps in order to include legislative protection against sexual harassment explicitly defining and prohibiting both quid pro quo and hostile environment sexual harassment, and providing for appropriate remedies including reinstatement, and to take measures in order to raise awareness, in cooperation with social partners, with the aim of better preventing and addressing the issue of sexual harassment in employment and occupation.

National Constitution. Recalling its previous comments in which the Committee noted that, pursuant to article 33(5)(c) and (d) of the Constitution, the prohibition of discriminatory provisions (article 33(2)) shall not apply to laws with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law, and to customary laws, the Committee notes the Government’s indication that, since it is prohibited by the Labour Act, by implication other laws may not establish differential treatment. The Committee asks the Government to provide specific information clarifying how the provisions of the Labour Act can override the provisions of the Constitution. The Committee again asks the Government to provide information on any laws, indicating any specific legal provisions which establish differential treatment on matters which fall, either directly or indirectly, within the field of the Convention, and on the persons concerned.

Articles 1 and 2. Workers excluded from the protection of the Labour Act. The Committee previously noted that the Labour Act excludes civil servants and domestic workers. Following the Government’s previous statement that the Labour Act would be amended to cover domestic workers, the Committee notes the Government’s indication that consultations are being held in order to amend certain sections of the Labour Act. The Committee asks the Government to provide information on any developments regarding amendments to the Labour Act and to provide information on any steps taken to include domestic workers and any other excluded groups under the protection of the Labour Act. The Committee also reiterates its request for detailed information on the manner in which workers excluded from the Labour Act, including civil servants and domestic workers are protected, against discrimination based on any of the grounds enumerated in the Convention is ensured in law and in practice.

Articles 2 and 3. National policy to promote equality in employment and occupation. The Committee notes that the NEP and the NEAP have been reviewed and extended for the period of 2010–14 and provide an integrated employment strategy that targets youth and women by focusing on skills development, entrepreneurship, equal access to finance, employability, equal opportunity and employment creation. With respect to the Gambian Priority Employment Programme (GAMJOBS), the Committee notes that, under the third component of the project, the establishment of the Gambia Enterprise and Skills Development and Training Fund (GETFUND), special employment initiatives targeting women and youth have been undertaken to address skills gaps, and employability has been promoted through the improvement of knowledge and skills training in vocational and technical institutions. The Government indicates that 1,400 persons have benefited from the training courses offered and that a study is being conducted in order to collect data on the number of trainees securing employment or self-employment following the programme. The Committee further notes that the Decent Country Work Programme for Gambia is in the process of being adopted. The Committee asks the Government to provide specific information on the steps taken under the NEP and the NEAP to achieve equality of opportunity and treatment in employment and occupation based on all the grounds enumerated under Article 1(1)(a) of the Convention and to provide information on the results achieved. The Committee asks the Government to provide statistical data disaggregated by sex on the number of persons benefiting from the GAMJOBS training programmes and securing employment after completing the programme.

Gender equality. The Committee notes that the Government refers to the enactment of the Women’s Act of 2010 (Act No. 12/2010). The Government states that the Act guarantees equal rights for men and women and calls for gender balance in the public sector. The Committee recalls its previous comments in which it noted the statistics provided under the Country Programme Document for Gambia (2007–11), which indicated that, although women constituted 51 per cent of the population, they accounted for less than 32 per cent of formal private-sector employees, and 20 per cent of managerial positions. The Committee had also noted from the National Gender Policy 2010–20, aimed, inter alia, at promoting equality of opportunity for women in employment and occupation, that women represented about 25 per cent of the total number of civil servants. The Committee asks the Government to provide a copy of the Women’s Act of 2010, to provide information on measures taken to apply the principle of the Convention under the new Act and to indicate whether any awareness-raising activities have been organized in this regard. The Committee also reiterates its request for detailed information on the measures adopted to implement the National Gender Policy, in order to improve access of women and men to education and vocational training, promote equal employment opportunities, and improve access of women to a wider range of jobs and occupations, including access to land and credit.