Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Egypte (Ratification: 1960)

Autre commentaire sur C111

Observation

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Articles 1 and 2 of the Convention. Protection against discrimination. Legislation. For a number of years, the Committee has been commenting on the existence of gaps in the legislative protection against discrimination. In particular it noted that the relevant provisions (sections 35, 88 and 120) of the Labour Code of 2003, while providing some protection against discrimination in relation to certain aspects of employment and with respect to certain grounds of discrimination, did not cover access to employment and all terms and conditions of work, and did not appear to address indirect discrimination. Furthermore, domestic workers and public officials were excluded from the application of the Labour Code. In this regard, the Government referred repeatedly to the provisions in the Constitutional Declaration which prohibited discrimination against citizens on the basis of race, origin, language, religion and creed (article 6). The Committee therefore asked the Government to take the necessary measures to amend the legislation in order to ensure effective protection against discrimination in accordance with the Convention. The Committee notes that the Government in its reply merely indicates that a new Constitution was adopted in 2014, article 53 of which provides that “All citizens are equal before the Law, and are equal in rights, freedoms and general duties without discrimination based on religion, belief, sex, origin, race, colour, language, disability, social class, political or geographical affiliation, or for any other reason”, thus covering all the grounds set out in Article 1(1)(a) of the Convention. Article 53 in fine further stipulates that the State shall take the necessary measures to eliminate all forms of discrimination. The Committee notes that these provisions continue to apply only to citizens. Moreover, it does not appear that they can be directly invoked in civil proceedings by employees in the private sector. Regarding the application of the Convention to non-citizens, the Committee recalls that where constitutional guarantees on equality or non-discrimination are confined to citizens, it is necessary to ensure that non-nationals are covered by non-discrimination and equality provisions in the labour or other relevant legislation. With respect to the protection of domestic workers from discrimination, the Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to clarify whether the constitutional provisions concerning equality and non-discrimination can be directly invoked in civil proceedings by employees in the private sector and, if so, to provide examples of any judicial decisions in this regard. Noting that, pursuant to Ministerial Order No. 60 of 2011, a committee has been established to review the provisions of the Labour Code with a view to bringing the labour legislation into line with international labour standards, the Committee encourages the Government to take the opportunity of the legislative review process to ensure that specific legislative protection is provided against direct and indirect discrimination based on at least all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention, covering all aspects of employment and occupation and all workers, including non-citizens and domestic workers.

Discrimination on the basis of sex. Sexual harassment. For more than a decade, the Committee has been drawing the attention of the Government to the importance of specifically defining and prohibiting sexual harassment in employment and occupation, addressing both quid pro quo and hostile work environment harassment in accordance with the elements set out in its 2002 general observation and the General Survey of 2012 on the fundamental Conventions, paragraph 789. The Committee recalls that sexual harassment is currently prohibited in a number of criminal law provisions, none of which contain a comprehensive definition of sexual harassment taking into account these elements, and the Government until now has not provided any information on the practical application of these provisions. The Committee therefore requested the Government to consider including sexual harassment in the labour legislation, in the context of the ongoing legislative review. The Committee notes from the Government’s report that the Penal Code (Act No. 58/1937) has been amended by Act No. 50/2014 to criminalize and define for the first time sexual harassment. In particular, section 306Abis(1) criminalizes “Any person who intercepts another person at a public, private or common place and subjects the latter to sexual or pornographic gestures, allusions or signs, whether this is by using hands, words or through deed in any manner including the use of telecommunications” and provides for sanctions including imprisonment and a fine; sanctions are increased if the act is repeated by the perpetrator by observing or following the victim (section 306Abis(2)). Section 306Bbis of the Penal Code provides that the crime set out in section 306Abis is sexual harassment if the aim of the perpetrator is to obtain a favour of a sexual nature from the victim, and in this case provides for heavier sanctions. Heavier sanctions are also provided for if the offender is in a position of authority. While the Committee welcomes the new provisions to the extent that they address certain forms of sexual harassment, it considers that they still define sexual harassment too narrowly and do not appear to cover the full range of behaviour that may constitute sexual harassment in employment and occupation. Moreover, in order to constitute such harassment, the perpetrator’s intention to obtain a favour of a sexual nature from the victim is required, whereas in cases of sexual harassment the focus should be on the fact that the conduct is “unwelcome, unreasonable and offensive to the victim” or “conduct that creates an intimidating, hostile or humiliating working environment for the recipient”. The Committee also wishes to recall once again that addressing sexual harassment in employment only through criminal proceedings is normally not sufficient due to the sensitivity of the issue, the higher burden of proof and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation (see the 2012 General Survey, paragraphs 789 and 792). In light of the current review of the Labour Code and to ensure comprehensive protection against sexual harassment in employment and occupation, the Committee requests the Government to take the necessary measures to include in the Labour Code a definition of sexual harassment that expressly covers both quid prod quo and hostile working environment sexual harassment in employment and occupation taking into account the elements set out in its 2002 general observation, as well as a mechanism that provides remedies for victims and penalties for offenders, whether they are employers, work colleagues or clients. The Committee once again asks the Government to provide information on the practical measures adopted to raise awareness and to prevent sexual harassment in the public and private sectors and on any complaints of sexual harassment in the workplace filed with the labour inspectorate or the judicial authorities. The Committee further requests the Government to include information on the manner in which the criminal provisions cited above have been applied in practice, in particular any convictions concerning sexual harassment in employment and occupation.

The Committee is raising other matters in a request addressed directly to the Government.