Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 1 of the Convention. National legislation concerning equality and non-discrimination. The Committee recalls the lack of specificity in the elaboration of specific grounds of discrimination and of a definition of direct and indirect discrimination in the Manpower Act No. 13 of 2003, in accordance with the Convention. The Human Rights Act prohibits in a general manner direct and indirect discrimination based on a number of grounds, including social origin. The Committee notes that Act No. 40 of 2008 concerning the Elimination of Racial and Ethnic Discrimination and its explanatory notes, read together, appear to define and eliminate direct and indirect discrimination based on race and ethnicity and provide equal treatment in the civil, political, economic, social and cultural fields (sections 1, 4 and 9). The Committee further notes the general information in the Government’s report that the guidelines on equal employment opportunity have been promoted in a number of regions, but that no court decisions relating to discrimination have been issued; cases submitted have been resolved by the mediator before reaching court. While welcoming the legislative developments regarding racial and ethnic discrimination, the Committee remains unclear about the precise protection provided against discrimination in sections 5, 6, 32 and 153(i) of the Manpower Act and whether these would provide effective protection against both direct and indirect discrimination in accordance with the Convention. The Committee requests the Government to provide information on the practical application of sections 5, 6, 32 and 153(i) of the Manpower Act No. 13/2003, the Act concerning the Elimination of Racial and Ethnic Discrimination No. 40 of 2008 and the Human Rights Act of 1999, including the number and nature of violations found by the National Human Rights Commission (Komnas HAM), the labour inspectorate or any other enforcement authorities, or decisions handed down by the courts with respect to discrimination in workers’ access to vocational training, employment and to particular occupations, and terms and conditions of employment, as well as the sanctions imposed and remedies provided. Please also provide information on the practical impact of the measures taken to promote and raise awareness about the guidelines on equal employment opportunities and the national legislative framework concerning equality, among government officials, workers, employers and their organizations.

Sexual harassment. The Committee recalls that Chapter XIV of the Criminal Code is unlikely to be sufficient to provide adequate and effective protection against all forms of sexual harassment (quid pro quo and hostile environment) at work. While taking note of the Government’s statement regarding section 35(3) of Manpower Act, the Committee notes that this provision is specific to placement of workers and does not cover all aspects of employment and occupation. The Committee further notes that, with the assistance of the ILO and in cooperation with the social partners, the Ministry of Manpower and Transmigration is developing a code of practice on sexual harassment in the workplace and implementation guidelines. The Committee requests the Government to provide a copy of the code of practice and its implementation guidelines, once finalized, as well as any information on the action taken to promote its use in the public and private sectors. The Committee encourages the Government to give serious consideration to amending the Manpower Act or to adopting legislation with a view to protecting workers more effectively against all forms of sexual harassment at work.

Discrimination on the ground of religion. Noting the absence of further information in the Government’s report regarding the manner in which workers of faiths other than those enumerated in Regulation of the Minister of Manpower and Transmigration No. PER-04/MEN/1994 can benefit from allowances paid before certain religious holidays and are not discriminated against in this regard, the Committee urges the Government to supply information on this matter in its next report.

Article 2. Access to employment and occupation, vocational training and education. The Committee notes from research carried out by the Ministry of Women’s Empowerment and Child Protection that between 2004 and 2008, the labour force participation rate of women slightly increased from 49.2 to 51.1 per cent while it slightly decreased for men from 86 to 83.5 per cent. The additional female labour force was absorbed in sectors which have been traditionally employing women, such as trade, agriculture or industry. However, women appear to be more economically active in the informal economy, and as unpaid family workers. The increase in women’s labour force participation rate has not necessarily led to an improvement in their employment status. The Committee further notes the statistics provided by the Government on the number of training programmes conducted between 2005 and 2008, which, however, do not indicate whether any progress is being made regarding equal opportunities of men and women to access and participate in a wider range of educational and vocational training courses, leading to better paid jobs. The Committee requests the Government to supply statistical information, disaggregated by sex, on the participation of men and women in the various sectors of employment and occupations in the public and private sectors, as well as in the formal or informal economy, and on the number of men and women participating in vocational training and education, specifying the type of courses attended. Please also supply information on any measures taken or envisaged to address existing inequalities in women’s access to higher education and employment, and on the impact of such measures on women’s opportunities to access a wider range of occupations.

Equal employment opportunity guidelines. The Committee notes, with interest that equal employment opportunities (EEO) assessments have been conducted in many subsectors of the economy, which resulted in the adoption of EEO guidelines specific to the beverages and garment subsectors. The Committee asks the Government to provide information on the practical impact of the EEO guidelines developed in the beverages and garment sectors, and on the measures taken to extend the initiative to all economic sectors. The Committee reiterates its request to the Government to provide information on measures taken, in cooperation with the social partners, to extend the application of the Equal Employment Opportunities (EEO) Guidelines of 2005 to grounds other than sex, referred to in the national legislation and Article 1(1)(a) of the Convention.

Article 4. Activities prejudicial to the security of the State. The Committee reiterates its requests to the Government to provide information on progress made in the collection of statistical data on cases of convictions related to the provisions in the Criminal Code penalizing both the dissemination and the development of “Communism/Marxism–Leninism in all their forms and manifestations”. Please also clarify its implications on equal opportunity and treatment in employment and occupation with respect to political opinion.