Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Bahreïn (Ratification: 2000)

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Observation

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion at the Conference Committee on the Application of Standards at its 106th Session (June 2017) and the conclusions adopted which called upon the Government of Bahrain to:

(i) report on the measures taken to implement the commitments contained in the Tripartite Agreements of 2012 and 2014 in connection with the Government’s efforts to comply with Convention No. 111 to the Committee of Experts for its November 2017 session;

(ii) ensure that the legislation covers all recognized prohibited grounds of discrimination set out in Article 1(1)(a) of the Convention, and discrimination in both its direct and indirect forms, and undertake measures to ensure that discrimination in employment and occupation is prohibited in law and in practice;

(iii) ensure that migrant workers as well as domestic workers are included in the protection of anti-discrimination law;

(iv) ensure equality of opportunity and treatment in employment of women; and

(v) ensure sexual harassment is prohibited in the Labour Code and provide information regarding how complaints of this nature may be advanced, to the Committee of Experts for its November 2017 session.

The Committee also notes that the Conference Committee invited the Government to accept a direct contacts mission, and that the ILO Office is still awaiting the Government’s response.

The Committee also notes the observations from the International Organisation of Employers (IOE) received 6 September 2017, the International Trade Union Confederation (ITUC) received 1 September 2017, and Education International (EI) and the Bahrain Teachers Association (BTA) received 6 September 2017, which were sent to the Government for its comments thereon.

I. Measures taken to implement the commitments contained in the Tripartite Agreements of 2012 and 2014

Article 1 of the Convention. Discrimination on the basis of political opinion. The Committee recalls that, at the 100th Session (June 2011) of the International Labour Conference, a complaint under article 26 of the ILO Constitution was filed by some Workers’ delegates at the Conference concerning the non-observance by Bahrain of Convention No. 111. According to the complaint, in February 2011, suspensions and various forms of sanctions, including dismissals, were imposed on members and leaders, as a result of peaceful demonstrations demanding economic and social changes and expressing support for ongoing democratization and reform. The complaint alleged that these dismissals took place on grounds of the workers’ opinions, belief and trade union affiliation. At its 320th Session (March 2014), the Governing Body welcomed a Tripartite Agreement, reached in 2012 by the Government, the General Federation of Bahrain Trade Unions (GFBTU) and the Bahrain Chamber of Commerce and Industry (BCCI), as well as a Supplementary Tripartite Agreement of 2014. The Governing Body invited this Committee to examine the application of the Convention by the Government, and to follow up on the implementation of the agreements reached. According to the Tripartite Agreement of 2012, the national tripartite committee that had been put in place to examine the position of those workers who had been dismissed or that were referred to the criminal courts should continue its work to ensure the full reinstatement of workers. In addition, under the Supplementary Tripartite Agreement of 2014, the Government, the GFBTU and the BCCI had agreed to: (i) refer to a tripartite committee those cases which had not been settled and which relate to financial claims or compensation and, in the absence of consensus, refer such cases on for a judicial determination; (ii) ensure social insurance coverage for the period of interrupted services; and (iii) reinstate the 165 remaining workers dismissed from public sector employment and from the major private companies in which the Government has shares and from other private companies according to the list annexed to the Supplementary Tripartite Agreement.

In its report, the Government recalls that, at the date of reporting (30 August 2017), 98 per cent of all cases involving dismissal and mentioned in the Tripartite Agreement of 2012 had been successfully settled (reinstatement with full retention of their employment and pension rights and benefits) and that this file has been closed, with the agreement of the three parties. As for the remaining 2 per cent (or the 165 outstanding problematic cases where there was disagreement with the employers), the Government indicates that, although they concern cases where the persons concerned have been subject to a criminal conviction or where no link has been proven between dismissal and the events of 2011, it had agreed (under the framework of the Supplementary Tripartite Agreement of March 2014) to continue negotiations with employers to settle these cases or find the workers concerned alternative employment. According to the Government, 108 cases have been processed and settled by reinstating the workers or finding them similar alternative work with the same pay and benefits. A number of dismissed workers accepted the financial compensation offered, while others have obtained commercial licences and become independent business persons.

The Government further explains that, on 5 January 2017, the GFBTU wrote to it requesting that greater efforts be made to address the 37 remaining cases of the 165 on the list annexed to the Tripartite Agreement, which the GFBTU viewed as outstanding and not yet finalized. In line with the principle of sustained cooperation and partnership with the GFBTU, the Government exerted all possible efforts to settle the 37 problematic cases, despite differences of opinion on the causes of dismissal in these cases. The results of these efforts are that of these 37 cases: (i) ten workers dismissed were reinstated despite the difficulties encountered; (ii) two were offered a financial settlement upon their request, as they did not wish to return to work; (iii) of the 18 workers who were the subject of criminal conviction, 13 cases have been settled. Despite the fact that the Government had no obligation towards workers found guilty in a criminal court, it has resolved to find them alternative employment, if they so wish, once they are registered as jobseekers and able to present a “certificate of rehabilitation”. For the remaining five outstanding cases, this opportunity has not been seized; and (iv) examination and investigation of documents submitted by the GFBTU to meetings of the Joint Tripartite Committee has shown seven cases to be ordinary cases of dismissal to be dealt with as individual labour disputes (for example, disciplinary sanctions initiated before the events of February 2011) and/or with no link to the events of February 2011 in Bahrain. Therefore, it had been agreed to exclude them from the list of dismissed workers recognized under the Tripartite Agreement. Nevertheless, the Government has sought to help these workers and address their situation; accordingly, of these seven workers, one has resigned because of health reasons; one has accepted the offer of an alternative employment in the private sector; one has opted to become an employer and the Government has enabled him to obtain a commercial register; and four did not make use of the possibility to apply for an alternative employment. The Government therefore concludes that, pursuant to the above, all of the cases of workers dismissed in the wake of the events of February and March 2011 have been fully settled on the basis of cooperation at the national level between the social partners but affirms its readiness at all times to continue cooperation and its commitment to finding suitable, alternative employment for all those who so wish.

In this regard, the Committee notes the observations of the ITUC that not all dismissed workers have been fully reinstated in their jobs. According to the ITUC, 64 cases of dismissal related to the events of February 2011 are still pending because the employers refuse to reinstate those workers. The ITUC further affirms that the financial compensation of most reinstated workers has not yet been settled by their respective employers, despite the terms of the Tripartite Agreements in this regard, and that some employers have also declined to provide social insurance for their reinstated workers for the period they were dismissed. In this regard, the Committee notes that, in the list of 165 names attached to the Tripartite Agreement of March 2014, only 12 persons are mentioned as employees of the Ministry of Education. EI and the BTA state that many teachers who had been involved in the peaceful protests lost their jobs and livelihoods at that time and have still not been reinstated or received compensation. However, it is not clear from the statement of EI and the BTA whether some of the 120 teachers who lost their jobs, and are still awaiting reinstatement, were part of the Tripartite Agreements reached in 2012 and 2014. The Committee notes further that the GFBTU, which is a party to the Tripartite Agreements, did not send its observations confirming the full implementation of the abovementioned Agreements, as stated by the Government. It also notes that the Government itself ends its report on that issue, by indicating its readiness and commitment to continue cooperation to finding suitable, alternative employment for all those dismissed workers who so wish – implying that some cases have not yet been settled. Consequently, the Committee requests the Government to provide evidence that the cases of the 165 dismissed workers mentioned by name in the Annex to the Tripartite Agreement of March 2014 have been resolved to the respective satisfaction of the parties, that is, not only have the workers who so wish been reinstated or offered alternative employment, but also that they have received financial compensation and provision of social insurance coverage for the period of dismissal. Noting that workers who were convicted by judicial decisions could request assistance from the Ministry to find alternative employment on the condition that they register as jobseekers and are able to produce a “certificate of rehabilitation”, and that nine out of 18 have not made use of that opportunity, the Committee asks the Government to indicate what are the conditions to be fulfilled to obtain that certificate.

The Committee notes the information communicated by EI and the BTA that, following the dismissal of a number of teachers involved in the peaceful demonstrations during the 2011 events, some 9,000 expatriates have been hired from other Arab States by the Ministry of Education and a two-tier teacher workforce has been established with expatriate teachers benefiting from better conditions than nationals. Noting that the Government has not provided its comments on the issues raised in that observation, the Committee invites the Government to provide its comments on these issues.

II. Ensure that legislation covers all recognized prohibited grounds of discrimination set out in Article 1(1)(a) of the Convention, in both direct and indirect forms, and undertake measures to ensure that discrimination in employment and occupation is prohibited in law and practice

Article 1(1)(a) and (3). Grounds of discrimination and aspects of employment and occupation. The Committee recalls that, in its previous comments, it had noted that the Labour Law in the Private Sector of 2012 (Law No. 36/2012) does not apply to “domestic servants and persons regarded as such, including agricultural workers, security house-guards, nannies, drivers and cooks” performing work for the employer or the employer’s family members (section 2(b)). It had further stressed that sections 39 (discrimination in wages) and 104 (termination considered to be discriminatory) of the Labour Law in the Private Sector do not include race, colour (only mentioned in section 39), political opinion, national extraction and social origin in the list of prohibited grounds of discrimination. The Committee notes that, although the Government recognizes that there is a lack of a comprehensive definition of all forms of discrimination in accordance with the Convention, it reiterates its previous explanation, that is: (i) in practice no mention of any actual violation of this principle has been reported in 2015 and 2016 (the Ministry receives more than 3,000 inquiries weekly and none alleges discrimination based on political opinion, gender, religion, etc.); (ii) private sector workers have at their disposal a number of mechanisms for lodging complaints and airing grievances (dispute settlement bodies, ministries, courts); and (iii) public sector workers are covered by Civil Service Instruction No. 16/2016 which prohibits discrimination based on gender, ethnicity, age or religion and have also at their disposal complaint procedures (internal committee, Civil Service Bureau, courts). Nevertheless, the Government indicates that it is ready to cooperate with the ILO to examine the possibility of formulating a comprehensive definition of discrimination in these two laws on the basis of international labour standards, in line with specific constitutional and legislative mechanisms and procedures. In this regard, the Committee wishes to reiterate that a clear and comprehensive definition of what constitutes discrimination in employment and occupation is instrumental in identifying and addressing the many manifestations in which it may occur (see General Survey on the fundamental Conventions, 2012, paragraph 743). It also wishes to stress that the lack of complaints is not an indicator of the absence of discrimination in practice. It is more likely to indicate the lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in, or the absence of, practical access to procedures, or fear of reprisals. The fear of reprisals is a particular concern in the case of migrant workers. Recalling the Government’s statement that it is willing to examine with ILO technical support the possibility of formulating a comprehensive definition of discrimination in line with the Convention, the Committee reiterates its request to the Government to take the necessary steps to include in the Labour Law in the Private Sector of 2012 a definition of discrimination as well as a prohibition of direct and indirect discrimination that covers all workers, without distinction whatsoever, with respect to all grounds provided for in the Convention, including colour; with respect to all aspects of employment, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, and to provide information on any developments in this regard. In addition, noting that Legislative Decree No. 48 of 2010 regarding the civil service does not include a prohibition of discrimination, the Committee asks the Government to take the necessary measures to ensure that public officials enjoy adequate protection in practice against direct and indirect discrimination in employment and occupation with respect to all grounds provided for in the Convention. In this regard, the Committee encourages the Government to consider including specific provisions in Legislative Decree No. 48 providing for comprehensive protection against discrimination in the civil service.

III. Ensure that migrant workers as well as domestic workers are included in the protection of anti-discrimination law

Article 3(c). Migrant workers. In response to the Committee’s request to provide information on the specific measures adopted to ensure effective protection of all migrant workers, including migrant domestic workers, against discrimination based on the grounds set out in the Convention, including access to appropriate procedures and remedies, the Government reiterates the information provided previously regarding the protection of migrant workers in the country, including domestic workers, and states once again that no evidence of discrimination against migrant workers has emerged. The Committee notes, however, new information provided by the Government, namely that since mid-2017 a flexible work permit system was introduced to regularize the status of a large number of persons working informally in Bahrain, enabling them to benefit from social insurance, unemployment insurance and health-care systems. This new system allows a migrant worker working in unfair conditions to make an independent application for a personal permit enabling him or her to work without being bound to a particular employer, in accordance with the rules, and thus avoid exploitation. Workers are also guaranteed full access to legal protection. This system will allow a migrant worker to sign a temporary employment contract and still enjoy all the benefits and rights provided by the Labour Law in the Private Sector, including freedom to transfer from one employer to another.

With regard to migrant workers, the ITUC recalls that migrant workers constitute around 77 per cent of the workforce in Bahrain and they come primarily from Bangladesh, Egypt, India, Jordan, Kenya, Nepal, Pakistan, Philippines, Sri Lanka, Syrian Arab Republic, Thailand and Yemen. Migrant workers are represented in numerous sections of the economy, including domestic work (12.8 per cent of the Bahraini workforce and 42.2 per cent of the female workforce), construction and service industries. In its report, the ITUC confirms the introduction of a pilot scheme for a flexible work permit (FLEXI) for limited categories of migrant workers in an irregular situation (skilled workers and workers who escaped abusive employers are not eligible, nor are domestic and agricultural workers). Accordingly, migrant workers in an irregular situation who are currently working in Bahrain are permitted to work without a sponsor provided that they cover certain costs, such as annual fees for work permits (US$530), annual health care (US$381) and a monthly social insurance fee (US$80). In addition, these workers must provide a valid passport in order to apply for a permit. However, ITUC adds that migrants trapped in an irregular situation are generally not in possession of their passport due to confiscation by their previous employer. Further, it is not clear which law covers the employment contracts of “flexi” permit workers and how this impacts the labour protections afforded to them. As regards the right to change employer, the Committee notes the total number of approvals granted for transfer from one employer to another in 2015 (35,000) and 2016 (24,000). It also notes that according to the ITUC although the Government has repeatedly argued that migrant workers in Bahrain are not subject to the kafala system and may change employment without the permission of their sponsor, the Labour Market Regulation Authority continues to allow employers to include in their employment contracts a requirement limiting the approval of a transfer to another employer for a specified period.

With regard to domestic workers, the ITUC recalls that, except in the case of very few provisions, they are excluded from labour law coverage; thus they do not benefit from the labour law provisions on weekly rest days or from a limit on working hours (they can sometimes work up to 19 hours a day with minimal breaks and no day off); there is no stipulation of a minimum wage with the result that, employers can pay wages as low as US$92 per month, averaging US$186. The ITUC concludes by recalling that a number of reports indicate that female domestic workers are victims of physical abuse and sexual assault. The Committee notes that the Government does not provide any information in this regard. The Committee therefore asks the Government to provide its comments on the ITUC’s allegations concerning the newly introduced “flexi-scheme” and the kafala system. In the meantime, the Committee reiterates its previous request to the Government to provide information on the specific measures adopted to ensure effective protection of all migrant workers, including migrant domestic workers, against discrimination based on all the grounds set out in the Convention. The Committee further asks the Government to ensure that any rules adopted to regulate the right of migrant workers to change employers do not impose conditions or limitations that could increase the dependency of migrant workers on their employers, and thus increase their vulnerability to abuse and discriminatory practices. The Committee asks the Government to provide information on the nature and number of cases, disaggregated by sex, occupation and country of origin, where the employer or the Labour Market Regulatory Authority did not approve of a transfer to another employer and on what basis. It also asks the Government to identify the specific steps taken or envisaged to raise awareness among both migrant workers and their employers of existing mechanisms to advance their claims to the relevant authorities. Further, the Committee asks the Government to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, and to identify and address cases of discrimination.

IV. Ensure equality of opportunity and treatment in employment of women

Article 2. Equality of opportunity and treatment between women and men. In its previous comments, the Committee had requested that the Government continue to provide information on the measures taken by the Supreme Council of Women (CSW) and other relevant authorities, including within the framework of the National Plan for the Advancement of Bahraini Women (2013–22) to promote the principle of equal opportunity between men and women, such as specific examples of legislative reforms undertaken or envisaged, as well as information on their impact on the employment opportunities for women including in areas traditionally dominated by men. It had also requested that the Government continue to provide statistical information on the participation of men and women in the labour market, disaggregated by sector, occupational categories and positions in both the public and private sectors, and the numbers of women and men respectively benefiting from vocational training. In its report, the Government recalls that Bahraini women began working in the private sector in the 1950s and, that by the 1960s, they had begun acquiring commercial registration and entering the world of business. According to the statistics provided, in 2016 women represented 32.8 per cent of the total Bahraini workforce and their average wage increased from 465 Bahraini dinar (BHD) (US$1,232) in 2011 to BHD521 (US$1,381) in the second quarter of 2016. As of August 2016, Bahraini women held 39 per cent of individual commercial registrations. In the private sector, Bahraini women occupy leadership positions, such as executive president, chair and membership in boards of directors. In 2014, four women were elected to the board of the BCCI, of which they constitute 22 per cent of the membership. Furthermore, Bahraini women have begun to enter new areas of employment with which they were not previously associated: for example, becoming taxi drivers, driving instructors and jewellers. According to the Government, these indications demonstrate that women make up approximately 50 per cent of all those working in public and private sector education. With regard to the CSW, the Committee notes that, in coordination with the CSW, 45 equal opportunity committees have been formed in government bodies with the aim of incorporating women’s needs within the equal opportunity framework in all areas of employment and achieving equality of opportunity between all employees and between all beneficiaries of government services. The equal opportunity committees are responsible for formulating guidelines, criteria and plans relating to the application of the principle of equal opportunity, monitoring full incorporation of women’s needs within the equal opportunity framework, and for providing advice. The Committee notes that the Ministry of Labour and Social Development has launched a number of initiatives designed to encourage the employment of women and promote ways of incorporating them in the labour market. These initiatives include, among others, promoting the recruitment of women by offering financial support equivalent to 50 per cent of the monthly wage for a period of two years; creating women-only vacancies; providing training programmes for women in specializations required by the labour market; holding job fairs specifically designed to recruit women; granting companies and employers extra benefits for recruiting women and promoting their presence in the labour market; recognizing a woman’s right to work part time (four to six hours daily), while enjoying all the rights and benefits set out in the Labour Law in the Private Sector and other laws, ensuring an annual leave entitlement, social insurance, healthy working conditions, etc. The Government states that, in addition to enjoying the full protection and benefits determined by the Labour Law in the Private Sector, the legislation grants a woman maternity leave (increased to 60 days with pay, instead of 45 days under the previous law), unpaid leave to look after her infant child under the age of 6 years (this is a new leave that did not exist under the previous law) and one month’s paid leave in the event of the death of her husband. In this regard, the Committee is of the view that, in order to avoid reinforcing stereotypes regarding the role of women and men in society and in the family, some of the measures mentioned above (a woman’s right to work part time, unpaid leave to look after a child under the age of 6 years or one month’s paid leave in the event of the death of the husband of a woman worker) should be extended to men also. Noting that the Government’s report provides ample information on steps taken to promote the principle of equal opportunity between men and women in employment and occupation, the Committee asks the Government to provide information on the impact of each of these measures on increasing the number of women in leadership positions and their situation in the labour market, in particular in areas traditionally dominated by men. The Committee also asks the Government to continue to provide statistical information on the participation of men and women in the labour market, disaggregated by sector, occupational category and position in both the public and private sectors, and the numbers of women and men respectively benefiting from vocational training.

Article 5. Special measures of protection. In its previous comments, the Committee referred to section 31 of the Labour Law on the Private Sector related to work prohibited for women and requested that the Government take the necessary measures to ensure that protective measures applicable to women are limited to maternity protection in the strict sense. In this regard, the Committee noted the adoption of Ministerial Order No. 32 of 2013 which prohibits women’s employment in certain sectors and occupations, including underground work, work involving exposure to high temperatures or dangerous vibrations, work requiring great or continuous physical efforts, and work involving the use or manufacturing of lead (section 1). The Committee also noted that Order No. 16 of 2013 regarding occupations in which, and circumstances under which, employing women at night is prohibited. The Order specifies the industrial establishments where women may not be employed at night, such as: sites where materials are manufactured, destroyed and converted; shipbuilding sites; sites of electric jobs (generating, transferring or coupling) and sites of construction projects and civil engineering. The Committee notes that in its report, the Government reiterates its previous explanation that these specific measures are aimed to protect women from jobs which are against their dignity, capacities and constitution. While noting the Government’s willingness to explore the possibility of including any legislative or regulatory amendments to the law, the Committee once again recalls that protective measures applicable to women’s employment, which are based on stereotypes regarding women’s professional abilities and role in society, violate the principle of equality of opportunity between men and women in employment and occupation enshrined in the Convention. In addition, provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work (see General Survey, 2012, paragraph 840). Consequently, the Committee once again urges the Government to take steps to ensure that protective measures applicable to women are limited to maternity protection in the strict sense, and to repeal or withdraw any provisions that constitute an obstacle to the recruitment and employment of women, such as Ministerial Order No. 16 of 2013 and section 1 of Order No. 32 of 2013. It asks the Government to provide information on the specific steps taken or envisaged in this regard. The Committee further asks the Government to identify the specific measures adopted to ensure that all workers, both men and women, working under hazardous or difficult conditions, are adequately protected.

V. Ensure sexual harassment is prohibited in the labour legislation and provide information regarding how complaints of this nature may be advanced

The Committee recalls that it had referred to the need to define and prohibit, expressly, sexual harassment in employment and occupation encompassing both quid pro quo and hostile environment harassment. In its report, the Government stresses that no cases of sexual harassment in the workplace have been reported and no complaints of this type have been registered by the Ministry of Labour and Social Development or other relevant bodies. In addition, it refers to sections 81 and 107(7) of the Labour Law in the Private Sector and item 33 of the Schedule of fines and penalties in Instructions No. 12 of the Bureau of the Civil Service of 2007. The Committee notes once again that these provisions do not provide a clear definition of sexual harassment but prescribe the sanctions in cases of serious misconduct, thus: (i) section 81, allows the employer to temporarily suspend a worker “if an offence or a misdemeanour prejudicing honour, trust or public ethics or an offence within the labour department is attributed to the worker”; (ii) section 107 allows the employer to terminate the labour contract without notice or compensation if a final judgment has been entered against the worker for an offence or a misdemeanour prejudicing honour, trust or public ethics or if the worker “has committed an immoral act at the workplace”; (iii) item 33 of the Schedule of fines and penalties provides for a preliminary written warning of dismissal from the public service, in the case of an assault or verbal or physical sexual harassment. The Committee wishes to emphasize that, without a clear definition and prohibition of sexual harassment in employment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment, both quid pro quo and hostile working environment (see General Survey, 2012, paragraph 791). The Committee also points out that the absence of reported cases on sexual harassment, as stated by the Government, does not necessarily indicate that this form of sex discrimination does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, workers and employers and their organizations, as well as a lack of access to, or the inadequacy of, complaints mechanisms and means of redress, or a fear of reprisals (see General Survey, 2012, paragraph 790). Recalling once again that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, and that addressing sexual harassment through criminal proceedings only is not sufficient (due to the sensitivity of the issue, the more onerous burden of proof, and the limited range of behaviours addressed), the Committee once again urges the Government to take steps to formally prohibit in the civil or labour law both quid pro quo and hostile environment sexual harassment and to provide remedies and dissuasive sanctions. It also asks the Government to take practical measures to prevent and address sexual harassment in employment and occupation, and to provide detailed information in this regard. Noting that the Government affirms its readiness to take advantage of ILO technical support, the Committee urges the Government to avail itself of the technical assistance of the Office.

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