Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Repetition

The Committee notes the Government’s first report on the application of the Convention.

Article 1 of the Convention. Legislative protection against discrimination. Scope of application. The Committee notes that article 16(2) of the Constitution of 2002 provides that no one shall be discriminated against on grounds of colour, race, marital status, gender, ethnic origin, language, social or economic status, political or ideological convictions, religion, education and physical or mental condition; and article 17 provides that women and men shall have the same rights and duties in all areas of family, political, economic, social and cultural life. It further notes that section 6 of the Law No. 4/2012 on Labour (Labour Law) provides that: (1) all workers, men and women, have the right to equal opportunities and treatment in access to employment, vocational training and professional development, working conditions and remuneration, and (2) no worker or job applicant shall, directly or indirectly, be favoured, disadvantaged, deprived of any right or dismissed on the grounds of colour, race, marital status, gender, nationality, ethnic ancestry or origin, social or economic status, political or ideological beliefs, religion, education, physical or mental condition, age or state of health. As regards the grounds of discrimination set out in Article 1(1)(a)of the Convention, the Committee observes that the Constitution and the Labour Law do not refer to the grounds of “social origin” and “national extraction”. It however observes that both cover the ground of “social origin” and “ethnic origin”, and that the Labour Law also refers to “nationality”. In that regard, the Committee recalls that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin. Discrimination based on national extraction may be directed against persons who are national of the country in question, but who have acquired their citizenship by naturalization or who are descendants of foreign immigrants, or persons belonging to groups of different national extraction living in the same State (see General Survey of 2012 on the fundamental Conventions paragraph 764).In light of the absence of a definition of “social status” and “ethnic ancestry or origin” in the legislation, the Committee asks the Government to provide information on the interpretation of such grounds of discrimination in practice in order to be able to assess whether the grounds of “social origin” and “national extraction” set out in Article 1(1)(a) of the Convention are covered by articles 16(2) and 17 of the Constitution and section 6 of the Labour Law. To that end, it asks the Government to provide copies of any administrative or judicial decisions interpreting the meaning of the grounds of “social status” and “ethnic ancestry or origin”.

Police and armed forces. The Committee notes that members of the police and the armed forces are excluded from the scope of application of the Labour Law pursuant to section 2(2). It further notes that Decree-Law No. 9/2009 of 18 February on Organic Law of Timor-Leste’s National Police (PNTL) does not protect members of the police against discrimination. As regards members of the armed forces, the Committee notes that section 58(4) of Law No. 3/2010 of 21 April on National Defense, and section 32 of Decree-Law No. 33/2020 of 2 September approving the new Statute for the Military of the FALINTIL – Defence Forces of Timor-Leste (F-FDTL), provides that members of the military enjoy all the rights, freedoms and guarantees recognized to the other citizens and cannot be prejudiced or privileged in their career on the grounds of ancestry, gender, race, territory of origin, religion, political or ideological beliefs, economic situation or social condition. The Committee observes that such provisions do not protect members of the armed forces from discrimination on the grounds of colour and national extraction.The Committee asks the Government to provide information on the measures taken or envisaged, both in law and practice, to protect: (i) members of the police against discrimination on all the grounds set out in Article 1(1) of the Convention, and (ii) members of the armed forces against direct or indirect discrimination on the grounds of colour and national extraction, in all aspects of employment and occupation, access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

Domestic workers. The Committee notes that domestic workers are excluded from the scope of application of the Labour Law pursuant to its section 2(3). It also notes that, as a result of a campaign undertaken by the Working Women’s Centre, which aims at supporting and improving working conditions for domestic workers acting as a collective voice, a draft Domestic Workers’ Bill has been developed and submitted to the National Parliament. The Committee observes that, to date, no specific regulation has been adopted to regulate domestic workers’ situation. It further notes that, according to the 2013 Labour Survey, around 90 per cent of domestic workers, mostly women, were in the informal economy. In this regard, the Committee notes that, in April and May 2020, the United Nations (UN) Secretary-General, as well as UN Women highlighted that, as a result of the COVID-19 crisis, domestic workers in the informal economy in Timor Leste lost their income with no way of supporting their family. The Committee observes that the Labour Law only applies to formal employment relationships, thus excluding workers in the informal economy from its scope of application. While it acknowledges that the informal economy gives rise to particular issues of application, both in law and in practice, the Committee wishes to point out that the principle of the Convention applies to all workers, including domestic workers and workers in the informal economy, who should enjoy equality of opportunity and treatment on the grounds of the Convention in all aspects of employment and occupation (see 2012 General Survey on the fundamental Conventions, paragraph 665).The Committee asks the Government to provide information : (i) on the current status of the Domestic Workers’ Bill; and (ii) on the measures taken, in law and in practice, to ensure that domestic workers and workers in the informal economy, who are particularly vulnerable to discrimination, enjoy equal opportunities and treatment and are protected against discrimination on all the grounds set out in Article 1(1) of the Convention, in respect of all aspects of employment and occupation.

Article 1(1)(a). Discrimination based on sex. Sexual Harassment. The Committee notes that section 4 of Law No. 7/2010 against Domestic Violence provides that “any individual, irrespective of his or her origin, nationality, social status, sex, ethnicity, language, age, religion, disability, political or ideological beliefs, culture and educational level shall enjoy the fundamental rights inherent to the dignity of the human person, and shall be guaranteed equality of opportunities to live free of violence, including the right to preserve his or her physical and mental integrity.” It further notes that section 7 of the Labour Law prohibits both quid pro quo and hostile working environment sexual harassment against workers and job applicants. With regard to public servants, the Committee notes that the Public Service Commission included similar provisions in its Guideline No. 12/2017 on Preventing and Combating Sexual Harassment in the Public Service, acknowledging that sexual harassment is a form of discrimination. The Committee observes that the Guideline highlights that women are more often victims of sexual harassment due to the social discrimination they suffer and their powerless position in society. In this regard, it takes note of the adoption of the National Action Plan against Gender-Based Violence for 2017–2021 which acknowledges that gender-based violence, including sexual harassment is a pervasive problem in Timor Leste and that alarming trends have been identified regarding social acceptance of gender-based violence, in particular due to unequal gender power dynamics. The Committee notes that the first component of the National Action Plan provides for specific actions to be implemented by the Government in order to prevent gender-based violence, by addressing its root causes, such as gender inequality and discrimination, including by: (1) increasing the knowledge on gender equality and gender-based violence; (2) transforming attitudes, practices, norms and behaviours that support, tolerate or accept gender inequality and gender-based violence; and (3) supporting a gender-based violence awareness approach to women’s participation in economic development, recognizing that being in a higher economic position can also put women at more risk of violence. In this regard the Committee notes that: (1) section 7(4) of the Labour Law also provides that employers shall put in place all necessary measures to prevent harassment, especially sexual harassment, from occurring in the workplace; and that (2) Guideline No. 12/2017 provides that public ministries and agencies have a duty to prevent and raise awareness of civil servants on sexual harassment.Recalling that sexual harassment is a serious form of sex discrimination, the Committee asks the Government to provide information: (i) on any specific measures envisaged or implemented to prevent and address all forms of sexual harassment in education and employment and occupation, both in the public and private sectors, in particular in the framework of section 7(4) of the Labour Law and the Guideline No. 12/2017 on preventing and addressing sexual harassment in the public service; (ii) on the specific measures implemented in the framework of the National Action Plan against Gender-Based Violence for 2017–2021, in particular to fight against social acceptance and raise awareness of gender-based violence, including in collaboration with workers, employers and their respective organizations; and (iii) on any complaint or case of sexual harassment dealt with by the competent authorities.

Article 1(2). Inherent job requirements. The Committee notes that section 6(3) of the Labour Law provides that “any differentiation, exclusion or preference based on qualifications that are required to access or perform a certain task do not constitute discrimination”.The Committee asks the Government to provide information on the application of section 6(3) of the Labour Law in practice, including by providing concrete examples of cases where it has been considered that a differentiation, exclusion or preference based on qualifications required to access or perform a certain task did not constitute discrimination.

Articles 2 and 3. National policy to promote equality of opportunity and treatment. The Committee notes the Government’s statement that no national equality policy has been adopted at national level yet. The Government adds that regular meetings are conducted through the tripartite National Council of Labour to discuss labour issues including discrimination in employment and occupation. The Committee recalls that the primary obligation of ratifying States is to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof(Article 2).In moving towards this objective, appropriate measures should be adopted in line with the underlying principles enumerated in Article 3of the Convention (see 2012 General Survey, paragraph 841).The Committee asks the Government to provide information on : (i) any measures taken or envisaged to formulate and implement, in collaboration with employers’ and workers’ organizations, a national policy to promote equality of opportunity and treatment for all categories of workers, in all aspects of employment and occupation and in respect of all the grounds set out in Article 1(1)(a) of the Convention (race, sex, colour, religion, political opinion, national extraction and social origin); and (ii) on the specific activities related to the elimination of discrimination and the promotion of equality of treatment in employment and occupation, undertaken in collaboration with employers’ and workers’ organizations, in particular within the framework of the National Council of Labour.

Equality of opportunity and treatment for men and women. The Committee notes the Government’s indication that, according to the Labour Force Survey conducted in 2013, the labour force participation rate was estimated at 31 per cent, while informal employment was estimated at 72 per cent. The Committee notes, from the 2020 Global Gender Gap Report of the World Economic Forum (WEF), that the labour force participation rates of women are still very low; as they are estimated at 25.6 per cent compared to 53.6 per cent for men. It further notes, from the 2018 Government’s report under the national-level review of implementation of the Beijing Declaration (Beijing+25 national report), that significant barriers still exist for women’s access to employment in a cultural environment dominated by men with: (1) women being mostly represented in the informal economy, in particular in rural areas; (2) the role of women being more concentrated in domestic affairs, commerce and business, financial matters, education, healthcare and other social issues; and (3) women being tasked with the responsibility of caring for children and elderly relatives which undermines their chance of participating in the formal labour market (pages 5, 39, 42 and 52). The Committee however notes that, the Secretariat of State for Equality and Inclusion (SEII), which is responsible for gender equality issues and inclusion, identified in the 2018–2023 Strategic Plan the following specific objectives: (1) to reinforce the gender mainstreaming strategy in all government policies, laws, programmes, plans, and budgets as well as to continue strengthening gender equality advocacy in the community level; (2) to empower and promote effective participation of women in the economic development of Timor-Leste; and (3) to increase the participation of women in politics and in decision-making at national and local levels. It further notes that the National Action Plan on Gender-Based Violence for 2017–2021 sets as a specific measure the promotion of gender equality at a legal and policy level, including by the development of “a comprehensive law on gender equality”.The Committee asks the Government to provide information on the measures taken, including in the framework of the 2018–2023 Strategic Plan of the SEII and the National Action Plan on Gender-Based Violence for 2017–2021, to improve equality of opportunity and treatment between men and women in employment and occupation by effectively combating gender stereotypes and enhancing women’s economic empowerment and access to decision-making positions, especially in rural areas. Noting that the ILO Decent Work Country Programme for 2016–2020 provides that a Labour Force Survey would be carried out with the technical support of the ILO in order to collect reliable sex-disaggregated employment data, the Committee asks the Government to provide any available statistical information on the participation of men and women in employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.

Access to education and vocational training. The Committee notes that article 59(2) of the Constitution provides that everyone has the right to equal opportunities for education and vocational training. It further notes that section 6(1) of the Labour Law provides that all workers, men and women, have the right to equal opportunities and treatment in access to vocational training and professional development. The Committee further notes the Government’s statement that the Technical and Vocational Education Authority, operating under the authority of the Ministry of Education, promotes training programmes and selects candidates on the basis of non-discriminatory principles. In that regard, it notes that the Government refers to the Technical and Vocational Education and Training Plan for 2011–2030 and the National Employment Strategy for 2017–2030, which aim to strengthen training centres and higher education and promote gender equality. The Committee notes, from the WEF 2020 Global Gender Gap Report, that the literacy rate of women is estimated at 64.2 per cent, compared to 71.9 per cent for men.The Committee asks the Government to: (i) provide information on the measures taken, including within the framework of the Technical and Vocational Education and Training Plan 2011–2030 and the National Employment Strategy 2017–2030, to enhance girls’ and women’s literacy rate and access to higher education and vocational training, in particular in rural areas; and (ii) provide statistical information on the participation of men and women in education and vocational training, in particular in the programmes of the Technical and Vocational Education Authority.

Public service. The Committee notes that section 8(1) of Law No. 8/2004 approving the Statute of the Public Service, as amended by Law No. 5/2009, provides that “selection and recruitment of civil servants and agents of the public administration shall result from a public competition which shall evaluate the qualifications, experience and professional competence of candidates on a non-discriminatory basis”. The Committee observes that this provision: (1) does not enumerate specific grounds of discrimination although section 8 specifically deals with gender equality; (2) only refers to recruitment; and (3) does not make reference to direct and indirect discrimination. It notes the Government’s statement that all recruitment processes are open and that no irregularities have been reported in this regard. The Committee further notes, from the Beijing+25 National Report that, in 2018, women’s representation in the public sector was estimated at 35 per cent, and only 21 per cent of decision-making positions in the public service were held by women.The Committee asks the Government to provide information on the measures taken or envisaged to: (i) ensure that civil servants and agents of public administration are protected, both in law and in practice, against direct and indirect discrimination, not only on the ground of sex but also on, at least, all the grounds enumerated in Article 1(1)(a) of the Convention in all aspects of employment and occupation; and (ii) enhance equality of opportunity and treatment between men and women workers in the public service, as well as women’s access to decision-making positions.

General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 5(2). Affirmative action measures. The Committee notes that section 6(4) of the Labour Law provides that “temporary measures that are clearly defined, provided for by law, and designed to benefit certain groups that are disadvantaged by virtue of their gender, reduced work capacity or disability, so that they may fully enjoy the rights enshrined in this Law on an equal footing shall not be considered to be discriminatory measures”.The Committee asks the Government to: (i) provide information on the application of section 6(4) of the Labour Law in practice, identifying any affirmative action measures developed or envisaged to ensure equality of opportunity and treatment in employment and occupation for groups of workers that are disadvantaged by virtue of their gender, reduced work capacity or disability; and (ii) indicate how it is ensured that any envisaged affirmative action measures would be adopted after consultation with employers’ and workers’ organizations, pursuant to Article 5(2) of the Convention.

Awareness-raising and enforcement. The Committee notes the Government’s statement that the authorities in charge of preventing, disseminating information and sanctioning in case of discrimination are the police, the Labour Inspection, the Provedoria for Human Rights and Justice (Ombudsperson Office) and the courts. The Government adds that information on the Labour Law as well as on the Convention is regularly disseminated through education and information measures. The Committee notes that section 97 of the Labour Law provides that individual labour disputes shall necessarily be submitted to conciliation and mediation before any recourse to courts, except contract termination on grounds of just cause. With respect to Labour Inspection, it notes that the ILO Decent Work Country Programme acknowledges that its capacity is very limited and that specific targets are set to conduct training for labour inspectors. The Committee further notes that Law No. 9/2016 on Suco recognizes that sucos, defined in sections 3 and 4 as public associations “created on the basis of historical, cultural and traditional circumstances, whose members are connected by family or traditional links, in a given space”, are able to promote the resolution of conflicts that arise at hamlet(aldeia)or village (suco) level “in accordance with the traditions and practices of the community and the respect for the principle of equality” (section 6(a)). In this regard, it notes that, in its Beijing+25 national report, the Government acknowledges that access to justice remains a challenge for the majority of the population, mainly as a result of: (1) the low number of courts which in practice means that geographic access is extremely difficult for most people; (2) the backlog of thousands of cases; and (3) the coexistence of a customary justice system and a formal justice system. In some communities, interpretation of women’s rights and gender equality is seen as confronting traditional customs inherited by ancestors, where women are still seen as guests, limiting their ability to exercise their rights (pages 18, 19, 36 and 46). The Committee notes the Government’s indication that no information is available yet on any case of discrimination in employment and occupation.The Committee asks the Government to provide information on: (i) any activities undertaken to raise public awareness of the relevant legislative provisions and the procedures and remedies available related to the principles of the Convention, (ii) any activities undertaken in this regard, in particular at community level, (iii)any training activities carried out to strengthen the capacities of labour inspectors regarding discrimination in employment and occupation, in particular as a result of the ILO Decent Work Country Programme, and (iv) any cases of discrimination in employment and occupation addressed by the competent authorities, including labour inspectors, the Mediation and Conciliation Services and the Provedoria for Human Rights and Justice.