Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. Article 1 and 2 of the Convention. Legislative developments. Protection from discrimination. The Committee notes that the Employment (Amendment) Act (Act 4 of 2006) introduces non-discrimination provisions into the Employment Act 1995. Section 46(1) of the Act, as amended, provides that “where an employer makes an employment decision against a worker on the ground of the worker’s age, gender, race, colour, nationality, language, religion, disability, HIV status, sexual or political orientation, trade union or other association, the worker may make a complaint to the Chief Executive stating all relevant particulars”.

2. The Committee recalls that the Convention aims at the elimination of direct and indirect discrimination. Indirect discrimination occurs “when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of certain characteristics, such as race, colour, sex, religion, and is not closely related to the inherent requirements of the jobs” (see the Committee’s Special Survey on Equality of Opportunity and Treatment, 1996, paragraph 26). The Committee requests the Government to indicate whether section 46A(1) is intended to provide protection not only from direct but also from indirect discrimination. Noting that this provision does not cover discrimination based on social origin, which is one of the grounds listed in Article 1(1)(a) of the Convention, the Committee requests the Government to indicate the reasons for this omission. It requests the Government to consider including in the legislation an explicit prohibition of direct and indirect discrimination, including discrimination on the ground of social origin.

3. Sexual harassment. The Committee notes that section 46B of Employment Act, 1995, as amended in 2006, provides that “an employer shall not commit any act of harassment against a worker”. The Committee notes that the term “harassment” as defined in section 2 appears broad enough to cover acts or conduct of a sexual nature, although the provision refers more generally to harassment on the ground of gender and other grounds. Noting the definition of “employer” in section 2 of the Act, the Committee requests the Government to indicate whether any protection is available from sexual harassment done by co-workers. Please also indicate the remedies available to victims of sexual harassment.

4. Articles 2 and 3. Formulation and implementation of a national policy on equality of opportunity and treatment. The Committee recalls that the Government previously indicated that it would consider the adoption of a non-discrimination and equality policy as soon as the Employment Act had been revised. The Committee notes that a national policy in accordance with Articles 2 and 3 of the Convention should, in addition to legislative measures, also provide for concrete and practical measures to address existing inequalities, for example, through promoting and ensuring equal access to training, vocational guidance and employment services, and awareness raising on discrimination and equality issues. It could also entail proactive measures to encourage employers to promote equality at the workplace. The Committee requests the Government to indicate any progress made in formulating and implementing a national policy in accordance with Articles 2 and 3.

5. Article 3(a). Cooperation with employers’ and workers’ organizations. The Committee notes that the Government’s report, in respect to this provision of the Convention, refers to section 72A of the Employment Act 1995, as amended, which provides for the establishment of a tripartite National Consultative Committee. The Committee requests the Government to indicate any activities or initiatives of the National Consultative Committee promoting the application of the Convention.

6. Part V of the report form. Practical information on application. The Committee emphasizes the importance of assessing information indicating the practical application of the Convention, including statistical information. In this regard, the Committee requests the Government to provide information on the following:

n      statistical information on the participation of men and women in the labour market (public and private sectors), as far as possible by occupation and levels of responsibility;

n      statistical information on the number of men and women participating in the various types of training courses and apprenticeships;

n      information on any employment discrimination cases in the private or public sector addressed by the competent authorities, including information on any complaints brought under section 46A and 46B of the Employment Act.