Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Maurice (Ratification: 2002)

Autre commentaire sur C111

Observation

Demande directe

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Article 1 of the Convention. Prohibited grounds of discrimination. Legislation. The Committee notes that the Equal Opportunities Act (EOA) 2008 prohibits an employer or a prospective employer from discriminating directly or indirectly on the basis of the “status” of a person, which is defined in the Act to mean race, colour, creed, sex, political opinion, age, caste, sexual orientation, place of origin, ethnic origin, impairment or marital status, in employment and occupation, including training. Discrimination based on sex includes discrimination based on pregnancy, family responsibility or potential pregnancy (section 2 read in conjunction with sections 5, 6, 10 to 12). While noting that the Employment Rights Act (ERA) 2008 does cover such grounds, the Committee asks the Government to take the necessary measures to amend section 2 of the Equal Opportunities Act (EOA), so as to include national extraction and social origin in the definition of “status”. The Committee also asks the Government to indicate how the anti-discrimination provisions of the ERA and the EOA interrelate and invites the Government to examine the possibility to harmonize the lists of prohibited grounds of discrimination under the ERA and the EOA.

Scope of protection against discrimination. Domestic workers and workers in small enterprises. The Committee notes that, pursuant to section 13(5)(c) of the EOA, workers providing domestic or personal services in or in relation to a person’s home are excluded from the protection of discrimination in respect to access to employment. The Committee considers that the right to respect for private and family life should not be construed as protecting conduct that infringes the fundamental right to equality of opportunity and treatment in employment and occupation, including conduct consisting of differential treatment of candidates for employment on the basis of any of the grounds covered by Article 1 of the Convention where this is not justified by the inherent requirements of the particular job (General Survey on the fundamental Conventions, 2012, paragraph 830). In this context, the Committee notes with interest the ratification by Mauritius of the Domestic Workers Convention, 2011 (No. 189), on 13 September 2012 and draws the Government’s attention to its Article 3(2)(d) which requires ratifying States to take measures to eliminate discrimination in employment and occupation. The Committee also notes that, under section 13(5)(e) of the EOA, the recruitment of workers in enterprises with less than ten employees on a full-time basis is not covered by the anti-discrimination provisions of the EOA. The Committee asks the Government to indicate how it is ensured that domestic workers, who are particularly vulnerable to discrimination, as well as workers in enterprises with less than ten full-time employees, enjoy the same protection against discrimination as all other workers covered by the EOA.

Measures and practices not deemed discrimination. The Committee recalls that, according to section 4(3) and (4) of the ERA, conditions, requirements or practices that have or are likely to have a “disadvantaging effect” are not deemed discrimination where they are “reasonable in the circumstances”. In addition, under section 13 of the EOA, there is a wide range of cases in which an employer or a prospective employer may discriminate against a person. The Committee recalls that the exception under Article 1(2) of the Convention must be interpreted restrictively so as to avoid undue limitation of the protection that the Convention is intended to provide (see General Survey, 2012, paragraphs 827–831). The Committee asks the Government to examine the exceptions pursuant to the ERA (section 4(3) and (4)) and the EOA (section 13), in light of Article 1(2) of the Convention, and to take the necessary measures to ensure that the exceptions permitted correspond in a concrete and objective way to the inherent requirements of a particular job. Please provide information on any judicial decisions interpreting the above mentioned provisions of the ERA and the EOA or any advice, decisions or recommendations by the Equal Opportunity Commission (EOC) dealing with this issue.

Sexual harassment. The Committee notes that the EOA (like the ERA), includes provisions concerning sexual harassment (sections 25 and 26) and contains provisions on discrimination by victimization (section 7). It notes in particular that according to section 25(1)(b) “a person sexually harasses another person where, in circumstances in which a reasonable person would have foreseen that the other person would be humiliated, offended or intimidated, he engages in any other unwelcome conduct of a sexual nature towards another person”. Since its establishment in 2012, the EOC has dealt with three complaints of sexual harassment, and nine cases were reported to the Ministry of Labour, Industrial Relations and Employment from June 2010 to May 2013, of which four were withdrawn. During this period, numerous seminars on bullying, harassment, threat and violence in the workplace have been held with the participation of 331 persons (191 men and 140 women). The Committee asks the Government to clarify whether the definition of sexual harassment under section 25 covers hostile environment harassment, when not “towards” a particular person. Noting the low number of cases of sexual harassment reported, the Committee asks the Government to provide information on the measures taken to ensure effective protection of workers seeking judicial or administrative redress and to examine any difficulties encountered by complainants, including in relation to procedural matters such as the issue of submitting evidence. The Committee also asks the Government to continue to take preventive and awareness-raising measures among workers, employers and their respective organizations, and officials concerned, and to provide information on the measures taken in this respect. Please also provide information on any cases detected by the labour inspectors or brought to their attention during regular inspection visits, and the outcome thereof.

Discrimination on the basis of political opinion. Noting from the interim report of the EOC (May–October 2012) that 15 per cent of the complaints lodged concern discrimination on the basis of political opinion and recalling its 2008 comments, the Committee asks the Government to indicate the measures taken or envisaged to eliminate discriminatory practices based on this ground.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes from the statistics provided by the Government the low number of women in vocational training courses (20.7 per cent from 2010 to 2012), the low participation of women in employment in general and that occupational sex segregation continues to be a significant feature of the labour market. The Committee welcomes the Government’s indication that all primary school textbooks have been rewritten under a new curriculum initiative in order to remove gender stereotypes. The Government also indicates that measures were taken to develop higher level training programmes with a view to further increase the participation of women in female dominated sectors but also to introduce technology as a compulsory learning domain for boys and girls and steps taken, in the Technical and Vocational Education and Training sector (TVET), to set goals such as “increase access and improved equity in TVET” and targets such as “total female enrolment increased by 40 per cent”. The Committee recalls that access to education and to a wide range of vocational training courses is a key factor in determining the actual possibilities of gaining access to a wide range of paid occupations and employment, especially those with opportunities for advancement and promotion (General Survey, 2012, paragraph 750). Welcoming the efforts made by the Government with respect to equality in education and training, the Committee asks for information on the implementation of the strategies aiming at increasing the participation of boys and girls to a wider range of courses, in particular in the TEVT sector and in sectors which tend to be male dominated, and on the results achieved. Noting that 16 ministries have formulated sectoral gender policies, the Committee asks the Government to provide information on any measures taken in this framework and the results thereof, so as to achieve gender equality in employment and occupation. Please also provide information on any equal opportunity policies addressing gender equality put in place by employers pursuant to section 9 of the EOA, and their results.

Equality of opportunity and treatment irrespective of race, colour, national extraction and social origin. The Committee notes the Government’s indication that a vast awareness-raising campaign has been undertaken with a view to promoting the work of the EOC and sensitizing the population to the EOA. The Committee notes from the interim report (May–October 2012) of the EOC that 20 per cent of the complaints lodged concern discrimination of the basis of ethnic origin, 6 and 5 per cent of which concern caste and place of origin respectively. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern at the existence of hierarchy along skin colour, ancestry, caste and racial lines in the State party’s society, whereby groups are perceived as, or felt, superior or inferior to others (CERD/C/MUS/CO/15-19, 18 April 2013, paragraph 16) and noted in particular the disadvantaged position of the Creole community (ibid., paragraph 19). The Committee also notes the concerns expressed by CERD at the poor working conditions of migrant workers (ibid., paragraph 22) and the concerns raised by the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) at the discriminatory employment practices faced by women migrant workers (CEDAW/C/MUS/CO/6-7, 21 October 2011, paragraph 34). Recalling its 2008 comments, the Committee asks the Government to take proactive measures to address discrimination based on ethnic and social origin and occupational stereotyping in the labour market, including awareness-raising campaigns, and to promote equality of opportunity and treatment of all ethnic groups, including through affirmative action measures, and to provide information on the measures taken by the Government and the EOC in this respect. The Government is asked to provide specific information on the situation of the Creole community in employment and occupation. Please also provide information on any equal opportunity policies put in place by employers pursuant to section 9 of the EOA addressing discrimination based on ethnic and social origin, and their results.

Enforcement. Labour inspection. Noting the information regarding discrimination cases reported to the Ministry, the Committee requests the Government to provide information on the discrimination cases detected by the labour inspectors or brought to their attention during the regular inspections visits. Please also indicate whether, and how, the labour inspectorate cooperate with the EOC, with respect to violations of the anti-discrimination provisions of the ERA and the EOA.

Practical information. Please provide information on the status of the study on “Discriminatory practices in the Mauritian Labour Market” and an indication of its findings.