Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information sent by the Government in its first report on the application of the Convention and in its additional report on sexual harassment. The Committee also takes note of the enclosed documents. It requests the Government to provide information on the following points in its next report.

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes with interest the Act of 26 May 2000 on protection from sexual harassment in relations at work, which contains a definition of sexual harassment covering the notions of quid pro quo sexual harassment and "hostile working environment" sexual harassment, and which affords protection in all employment contracts including those of interns, apprentices and students. It also notes that the Act requires employers to put an immediate end to all sexual harassment that comes to their notice, regardless of the perpetrator. The Committee notes that according to the Government, most disputes involving sexual harassment are settled out of court. It requests the Government to provide information in its next report on the application of the Act in practice, including its impact in terms of preventing sexual harassment, and on the number of court and other decisions given under the Act.

2. Prohibition of discrimination. The Committee takes note of section 454 of the Penal Code and its definition of discrimination as "any distinction made between natural persons by reason of their origin, skin colour, sex, sexual orientation, family status, health, disability, customs, political or philosophical opinions, trade union activities, their membership or non-membership, whether true or alleged, of an ethnic group, nation, race, or specified religion". The Committee observes that the definition does not appear to cover indirect discrimination. It also takes note of the Act of 8 December 1981 on equal treatment between men and women, which prohibits direct and indirect discrimination in employment and occupation. The Committee notes the bills to transpose Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, and Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The Committee observes that these bills cover direct and indirect discrimination in all areas of employment and occupation on the basis of religion, conviction, disability, age, sexual orientation, race and ethnic origin.

3. The Committee notes in this connection the draft Labour Code, which includes provisions on equality of opportunity and treatment between men and women. It observes that the draft Labour Code does not define or expressly prohibit direct and indirect discrimination on all the grounds established in the Convention in all areas of employment and occupation. It accordingly hopes that the Government will take advantage of the codification of labour legislation to incorporate such provisions. Meanwhile, it requests the Government to provide information on the application in practice of sections 454 et seq. of the Penal Code, and the legislation on equal treatment between men and women. Please also report to the Committee on developments in the process of enactment of legislation to incorporate the abovementioned European directives and of the Labour Code, and provide copies of the texts as soon as they are adopted.

4. Article 1(2). Inherent requirements of the job. The Committee notes that, under section 3(2) of the amended Act of 8 December 1981, the Government may, by a regulation of the Grand Duchy, after consultation of the relevant occupational chambers and the Committee on Women’s Work, establish the instances in which sex may be specified among the requirements for a job and where appropriate for training for the job or an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Government is asked to provide information on the measures taken under section 3(2) of the amended Act of 8 December 1981, and on their application in practice.

5. Article 1(3). Scope of the Convention. The Committee notes that section 455 of the Penal Code establishes penalties of imprisonment and/or fines for the forms of discrimination set forth in section 454 where they consist in hindering the normal performance of any economic activity, refusing to hire, sanctioning or dismissing a person, or subjecting a job offer to a requirement based on one of the grounds set out in section 454. The Committee notes that this provision does not cover discrimination in access to vocational training, access to occupation and conditions of employment. It requests the Government to indicate how discrimination based on race, colour, religion, political opinion, national extraction and social origin are prohibited in the areas of employment and occupation not dealt with in the Penal Code.

6. Article 2. Promotion of the national policy. The Committee notes the national action plan for employment and all the legislation giving effect to the principles of the Convention. It requests the Government to provide information on the activities conducted under the national policy to promote observance of the principles of equality of opportunity and treatment in respect of race, colour, sex, religion, political opinion, social origin and national extraction in employment and occupation, and on their impact in practice. The Committee would also be grateful if the Government would provide information on the activities of the Special Standing Committee on Racial Discrimination, the Committee on Women’s Work, the Inter-ministerial Committee on Equality Between Men and Women and the delegates in charge of equality, to promote the application of the Convention.

7. Article 3(a). Collaboration of the social partners. The Committee notes the adoption of the Act of 30 June 2004 on collective labour relations, and particularly section 20(4)(4), under which for framework agreements, employment and remuneration equality plans must be negotiated, with a view to applying the principle of equal treatment for men and women. The Committee would be grateful if the Government would provide information on the adoption of these equality plans and on their practical impact, and to send copies of them. It further requests the Government to indicate the measures taken or envisaged to obtain the cooperation of the social partners in order to encourage acceptance of the national policy in regard to the other grounds of discrimination set forth in the Convention.

8. Article 3(b). Information campaigns. The Committee notes that according to the Government’s report, in 2003 a campaign was organized to inform and sensitize public opinion about non-discrimination at work. The Committee requests the Government to provide information on the activities carried out in this campaign and their impact in practice. The Committee also notes that the Government’s report mentions the associations "MOBBING asbl" and "STRESS asbl", which have been created to inform the public about sexual harassment.

9. Article 3(d). Employment in the public sector. In the absence of any information from the Government on this matter, the Committee requests it to indicate in its next report how the principles of equality of opportunity and treatment in employment and occupation are applied to public sector or similar workers.

10. Article 3(e). Vocational training. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to ensure application of the Convention’s principles in the activities of the vocational training and placement services under the direction of the national authority.

11. Article 4. Measures against persons suspected of activities prejudicial to the security of the State. The Committee requests the Government to provide information on the provisions that regulate the employment or occupational activity of the persons referred to in Article 4, and the means of redress available to these persons.

12. Article 5. Special measures. The Committee notes that section XXVII of the amended Act of 12 February 1999 on the implementation of the National Action Plan for Employment, 1998, allows positive action involving specific advantages to facilitate the exercise of an occupational activity by the sex that is under-represented or to prevent or compensate disadvantages in a career. The Committee would be grateful if the Government would provide information on the positive action taken under section XXVII.

13. Parts IV and V of the report form. Judicial decisions and statistical information. The Committee requests the Government to provide information in its next report on administrative and judicial decisions on cases of discrimination on the grounds set forth in the Convention. It also requests the Government to provide reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all areas of vocational training and employment, together with any information allowing the Committee to ascertain the manner in which the Convention is applied in practice.