Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2009 and the resulting conclusions of the Conference Committee. The Committee also notes the Government’s report received in May 2009, and the additional information received in June and September 2009. The Committee welcomes the Government’s efforts to provide specific information, including statistics, in response to many of the points raised by the Committee and the Conference Committee. The Committee encourages the Government to continue to collect and provide such information and analysis, which assists it considerably in assessing the progress made in implementing the Convention.

The Committee notes that the Conference Committee expressed concern at the considerable obstacles to women’s access to a number of posts and occupations, including stereotyped views regarding the role of women. The Conference Committee urged the Government to remove any existing legal obstacles to women’s access to employment and to take proactive measures to address the practical barriers to women’s access to education and training opportunities and to certain posts and careers. The Conference Committee also urged the Government to ensure that effective measures, in law and practice, were put into place to protect all persons, including foreign workers, from discrimination on the grounds of race, colour or national extraction. Noting the particular vulnerability of migrant domestic workers, the Conference Committee urged the Government to pursue efforts to ensure more effective protection in law and practice against discrimination of these workers, on the grounds set out in the Convention, and to ensure that all workers were aware of their rights relating to non-discrimination, and that there was effective enforcement and access to complaints procedures. The Conference Committee stressed that the range of measures should be part of a coherent national policy on equality of opportunity and treatment in employment and occupation. Noting the Government’s request for ILO technical assistance, the Conference Committee expressed the hope that such technical assistance would be provided to enable the Government to apply the Convention in law and practice.

Legislative developments. The Committee notes from the Government’s report that the draft Labour Code is currently before the National Assembly, and that the Government intends to upgrade the provisions of the draft to expressly prohibit direct and indirect discrimination. The Committee also notes the Government’s indication that the draft Labour Code pays special importance to increasing privileges for women. The Committee welcomes the Government’s expression of commitment to effectively address discrimination in the new Labour Code, and hopes that the new Labour Code will be adopted in the near future and will promote equality of opportunity in employment and occupation. The Committee requests the Government to ensure that the new Labour Code includes provisions explicitly defining and prohibiting direct and indirect discrimination, on at least all the grounds enumerated in Article 1(1)(a), of the Convention (race, colour, sex, religion, political opinion, national extraction and social origin), with respect to all aspects of employment and occupation, and covering all workers, including domestic workers. Please provide information on any developments in this regard. With regard to the “special privileges for women” to be set out in the new Labour Code, the Committee asks the Government to ensure that it does not include protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and role in society, as such provisions would violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and to provide information in this regard.

Access of women to particular occupations. The Committee notes the information provided by the Government on the access of women to jobs in the military, the police, the diplomatic corps, the Administration of Justice Division and the Department of Public Prosecutions. The Government states that there is no legal basis to exclude women from any posts.

Regarding the police and the firefighters, the Committee welcomes the Government’s indication that the first group of female police officers have graduated from the police academy, and that the Public Fire Department expects to welcome the first group of graduate female firefighters shortly. The Committee also notes the Government’s indication that for the first time in the history of the country, four women have recently been elected to the National Assembly. The Committee requests the Government to provide information on the number of women and men who have successfully completed their training as police officers and firefighters, and how many of those have obtained positions in the police department and the fire department as a result, and at what level, disaggregated by sex.

With regard to women in the judiciary, the Government states that “women assume in all freedom a number of posts and occupations suitable to their nature as women”, and points to environmental factors, tradition and the nature and responsibility of the job as playing a large part in guiding authorities in appointments. The Government points out that women have been appointed to positions where they are responsible for investigations, providing formal legal opinions and as State lawyers defending the position of the Government. The Committee notes, however, that women do not seem to have been appointed as judges. With respect to the Ministry of Defence, the Government states that 70 per cent of the employees in the support services are women, and that women work as engineers, doctors and administrative staff at military camps. With respect to the diplomatic corps, the Government provides information evidencing that a few women have been appointed to high-level diplomatic positions (six women out of a total of 384 positions); however, the Government states that women generally refrain from such a career as a result of social and family pressures, since they are required to reside outside the country. Noting that there continue to be considerable barriers in practice to women accessing high-level positions in occupations under the Government’s control, including due to stereotyped assumptions regarding what is “suitable to their nature”, the Committee urges the Government to take proactive measures to ensure that women have equal opportunities with men to access all positions under the control of the Government, as well as to promote the equal access of women to positions at all levels in the private sector. Please indicate in this context any measures taken or envisaged to address gender stereotypes and the need to balance work and family responsibilities for both men and women.

Sexual harassment. The Committee notes the Government’s response to its previous request for information on the measures taken to prevent and combat sexual harassment in employment and occupation, indicating that it considers the provisions of the Penal Code, namely sections 191–192, 198–201 and 204, protecting women against rape and immoral acts, to be sufficient. The Committee notes that the provisions referred to by the Government do not explicitly address sexual harassment. The Committee considers that such provisions regarding crimes of a sexual nature are insufficient to address sexual harassment in the workplace, as sexual harassment includes a much broader range of behaviour and practices than those covered by the Penal Code. Recalling its 2002 general observation on this matter, the Committee requests the Government to take the opportunity of the drafting of the new Labour Code to include provisions that specifically define and prohibit sexual harassment in the workplace (both quid pro quo harassment and sexual harassment due to a hostile work environment), as well as providing effective remedies, and asks the Government to provide information on any progress made in this regard.

Discrimination based on race, colour and national extraction. The Committee has raised concerns in the past regarding the apparent absence of measures to ensure that no person, including foreign nationals, is subjected to discrimination based on race, colour or national extraction. The Committee notes from the Government’s report that it is committed to upgrading its legislation in the light of international labour standards, in the current legislative reform process. The Committee welcomes the Government’s expression of commitment to address discrimination based on race, colour and national extraction, and asks the Government to include a prohibition of such discrimination in the new Labour Code, along with effective remedies. The Committee also requests the Government to provide information on the progress of amending the Penal Code to address racial discrimination. Noting the Government’s indication that information would be provided in due course on the participation of residents without nationality (“Bidoons”) in the labour market, the Committee hopes that the Government will be in a position to provide such information in its next report, including information on the sectors or branches of work in which they are concentrated.

Migrant domestic workers. The Committee previously raised concerns regarding the absence of legislation protecting migrant domestic workers against discrimination, as discrimination is not addressed in the Regulation of Domestic Service Agencies (Act No. 40 of 1992). The Committee had stressed the particular vulnerability of migrant domestic workers, the majority of whom are women, and the importance of ensuring that they are protected against discrimination in all aspects of employment and occupation. The Committee notes the information provided by the Government to the effect that the mandatory model contract for domestic workers has been amended with respect to the minimum wage, the duration of annual holidays, rest periods and compensation for occupational injuries, and payment of the return ticket. The Government also provides information on government accommodation provided to migrant domestic workers, and assistance provided to a number of domestic workers while awaiting wage settlement from their employers. The Committee also notes the information provided on the number of complaints filed against employment agencies, and the Government’s indication that it is currently preparing statistics on the penalties imposed on employers and on the owners of employment agencies found in violation. The Committee also notes from the discussion in the Conference Committee, that preliminary research has been undertaken with a view to reviewing the sponsorship system. The Committee welcomes the steps taken by the Government to review the sponsorship system, and to provide support to migrant domestic workers, and asks it to provide information on further developments in this regard. The Committee also asks the Government to provide information on the nature and number of complaints submitted by domestic workers, and on sanctions imposed and remedies provided. Please also provide information on any steps taken to provide specific legal protection for migrant domestic workers against discrimination, whether in the context of the new Labour Code or otherwise.

National equality policy. The Committee notes that in pursuance of a national policy to promote equality of opportunity and treatment in employment and occupation, with a view to eliminating any discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction and social origin, the Government indicates that as well as preparing the new Labour Code, it is undertaking awareness raising aimed at fighting discrimination in all its forms, including through official television stations, and through campaigns launched by the Ministry of Religious Endowment and Muslim Affairs. The Committee recalls the importance of adopting proactive measures in the context of a national equality policy, including with respect to the areas set out in Article 3 of the Convention, and draws the Government’s attention also to Paragraphs 2 to 4 of the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111), in this regard. The Committee asks the Government to continue to provide information on awareness-raising activities relating to the principles of the Convention, and any other measures taken with a view to declaring and pursuing a national equality policy. Noting that the Government in its report again requests ILO technical assistance with respect to the revision of the Labour Code, the Committee hopes that, with ILO assistance, the Government will develop and implement a coherent national policy on equal opportunity and treatment in employment and occupation, a component of which would be the revision of the Labour Code.