Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

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

Autre commentaire sur C111

Observation

Demande directe

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The Committee notes the observations submitted by the General Federation of Bahrain Trade Union (GFBTU) and the International Trade Union Confederation (ITUC) received respectively on 30 August and 1 September 2018.

Article 1(1)(a) of the Convention. Discrimination on the basis of religious grounds. Previously, the Committee had asked the Government to provide its comments on the allegations raised by the ITUC, Education International (EI) and the Bahrain Teachers’ Association (BTA) that discrimination on a religious basis is the major form of discrimination in the country and that it is ongoing on a large scale both in the private and the public sectors. The Committee notes that in its observations the GFBTU states that: (i) discrimination on a religious basis is the major form of discrimination in the country; (ii) it occurs on a large scale, both in the private and the public sectors; (iii) there is clear evidence that citizens belonging to one religious community in the country are excluded from employment in the public sector and in nine major companies, largely government-owned, where the best conditions of work are enjoyed (wages, training, healthcare, insurance, loans, scholarships, etc.); and (iv) this group was subject to systematic discrimination prior to the political events of February 2011 but since then discrimination has extended so as to affect recruitment and terms and conditions of employment (in particular in human resources management, information technology, security sectors). In its latest observations, the ITUC reiterates its previous allegation that Muslim workers of Shia “obedience” (Shia Muslims) still suffer from discrimination, in particular in the public sector. The ITUC refers to the “1912” case which concerns a group of university graduates predominantly consisting of women (95 per cent) who were hired in 2009 as trainees on fixed-term contracts by various government ministries and institutions with the expectation that they would be given priority in upcoming recruitment opportunities. Although a number of them were able to obtain permanent positions, Shia Muslim trainees who had participated in the 2011 protests, as well as in other protests against discrimination, were dismissed. According to the ITUC, the Government states that their dismissals were linked to redundancies, while at the same time it continues to recruit workers for the positions previously held by these trainees. The ITUC concludes that discrimination in the public sector is exacerbated by the prohibition of public sector workers organizing (as per Circular No. 1/2003) and therefore preventing them from voicing their grievances about acts of discrimination.

In its report, the Government recalls that, since its ratification, the Convention is considered to be part of applicable national legislation and that the Constitution and National Action Charter are based on equality among citizens in rights and duties. The Government also states that: (i) national legislation enshrines Bahrain’s commitment to justice in applying the law and in ensuring the independence of the judiciary which provides protection to all persons (citizens or foreigners); (ii) the Legislative Decree No. 33/2002 on Trade Unions guarantees freedom of association; (iii) recent steps taken will result in an amendment to the Labour Code No. 36/2012 to include a section formally prohibiting and criminalizing discrimination in relation to all the rights covered by the Labour Code; (iv) Law No. 26/2014 establishes the National Institution for Human Rights (NIHR) the role of which is to promote, develop and protect human rights and to consolidate human rights values and disseminate awareness thereof. The NIHR is the specialized body for dealing with complaints related to human rights violations. Consequently, the Government states that in view of the efforts made by the Kingdom of Bahrain to ensure justice and equality among workers, it considers that the allegations communicated to the Committee by the workers’ organizations are not accurate and it urges the ILO to publish only information based on facts or reliable documents.

The Committee observes that, in its response to the GFBTU’s observations, the Government describes the legal framework in place but fails to provide information on the situation in practice. Although it is necessary for the provisions of national law to be in conformity with the requirements of the Convention, it is also important for the law to be fully and strictly applied in practice. The Committee also notes that, in its concluding observations regarding Bahrain’s initial report on the application of the International Covenant on Civil and Political Rights (CCPR), the United Nations Human Rights Committee (HRC) was concerned: (i) by reports that the Shia population has been subjected to restrictions on their rights to freedom of religion or belief (CCPR/C/BHR/CO/1, 26 July 2018, paragraphs 50–51); (ii) that the NIHR lacks sufficient independence to perform its functions (paragraph 8); and (iii) by reports indicating that, in practice, the judiciary is neither fully independent nor impartial (paragraph 44). Recalling that the Convention provides the obligation to eliminate discrimination in employment and occupation both in law and in practice, the Committee asks the Government to take proactive steps to foster respect and tolerance in society of all religious communities and to raise awareness of the existing legislation and mechanisms available for workers who consider that they have been subject to discrimination. It also asks the Government to provide information on its efforts to achieve a balanced representation of workers of different religious beliefs in the public sector including through qualitative research or studies.

Article 2. National equality policy with a view to eliminating discrimination based on race, colour, religion, political opinion, national extraction and social origin. In response to the Committee’s request for information on the steps taken to adopt a national policy to promote equality of opportunity and treatment, with a view to eliminating discrimination on all the grounds prohibited by the Convention, the Government indicates that it has taken many steps to protect workers of all types against discriminatory-related practices. However, the Government confirms that it stands ready to benefit from ILO technical assistance in the preparation of a national policy including by the provision of examples of policies adopted in this area by other member States for guidance. The Committee recalls that the Convention requires ratifying States to declare and pursue a national equality policy, leaving States’ flexibility regarding the adoption of the most appropriate policy. However, the implementation of a national equality policy presupposes the adoption of a range of specific measures, which often consist of a combination of legislative and administrative measures, collective agreements, public policies, affirmative action measures, dispute resolution and enforcement mechanisms, specialized bodies, practical programmes and awareness raising. In addition, the equality policy must be adjusted periodically to take into account newly emerging forms of discrimination for which solutions must be found (see 2012 General Survey on the fundamental Conventions, paragraphs 734–735 and 841–849). Trusting that the ILO will provide the technical assistance requested by the Government, the Committee asks the Government to provide information on the active steps it is taking to formulate and implement a national equality policy designed to address discrimination on the basis of all the seven grounds covered by the Convention as a minimum and to promote equality among the public in general.

Article 3(a). Cooperation with employers’ and workers’ organizations. Previously, the Committee had asked the Government to provide information on any consultation undertaken, as well as on any cooperation undertaken, with employers’ and workers’ organizations, with a view to promoting non-discrimination and equality in employment and occupation in practice. In its response, the Government emphasizes its keenness to cooperate with the social partners and promote social dialogue at various levels and to continue its bilateral and tripartite meetings with representatives of the Ministry of Labour and Social Development (MLSD), the Bahrain Chambers of Trade and Industry (BCCI), the GFBTU and the Bahrain Free Trade Union Federation (BFTU) in order to discuss any negative phenomena and enhance cooperation in maintaining the stability of the local labour market, including in combating discrimination in the labour market and in other areas. In this regard, the Committee notes the observations of the GFBTU recalling that all social partners in Bahrain have a role in achieving the effective implementation of the Convention and, consequently, calling for the establishment of a national mechanism where all concerned parties will be represented, with a view to implementing reviewing the application in practice of the equality of opportunity and treatment policy in respect of employment and occupation. It also notes that, in its meetings with the Direct Contacts Mission (DCM) in September 2018, the GFBTU regretted that there was no functioning tripartite body allowing for the participation of social partners in discussions concerning legislation that is critical to its members prior to submission of the proposed amendments to the National Assembly. The Committee notes that the BCCI also indicated, during its meeting with the DCM, that it had not been consulted prior to the launch of the flexible work permit pilot scheme, which had the potential to harm the business community. Nevertheless, the Committee welcomes the DCM findings that, although the tripartite constituents stated that social dialogue in the country is being hindered by the challenges encountered in the implementation of the Tripartite Agreements of 2012 and 2014 adopted under the auspices of the ILO, they all expressed the wish to engage in constructive social dialogue to address other pressing issues. In that regard, the Committee wishes to recall that, where there is an absence of genuine social dialogue, the application of the Convention is seriously hindered. Consequently, the Committee asks the Government to keep it informed of the progress achieved in building constructive social dialogue, in particular through the implementation of the Tripartite Agreements. In the meantime, recalling that the Convention acknowledges that employers’ and workers’ organizations have a key role in promoting the acceptance and observance of national policies and plans, including of a national policy on equality of opportunity and treatment in respect of employment and occupation, the Committee asks the Government to indicate the role of the workers’ and employers’ organizations in the implementation of the Convention as well as on the proposed reforms before their enactment.

Enforcement. Noting the Government’s repeated statement that there are no reported cases of discrimination in the country, the Committee had asked the Government to continue to raise awareness of the relevant legislation and to enhance the capacity of the competent authorities (including judges, labour inspectors and other public officials), in identifying and addressing cases of discrimination and also to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Government confirms that it continues to pay attention to the training of labour inspectors and to raise their capacities in carrying out their duties. As regards discrimination in employment and occupation more specifically, the Committee welcomes the information provided that the MLSD is considering creating a special unit within the Labour Complaint Division of the Ministry to receive workers’ complaints related to discrimination, in addition to setting in place special procedures for the examination of such complaints and for taking the necessary action. In this regard, the Committee notes that the ITUC refers to the lack of enforcement mechanisms which renders the labour legislation largely ineffective. Further, it observes that one of the findings of the DCM report (paragraph 102) is that there is low-level awareness as to the procedures for enforcing the prohibitions on discrimination and the remedies available to the victims of discrimination. The Committee asks the Government to take steps to raise awareness of the principles of equality and non-discrimination in employment and occupation and the procedures available and to keep it informed of any progress in the establishment of the special unit that will be dedicated to receiving and dealing with workers’ complaints related to discrimination. In the meantime, noting the Government’s readiness to collaborate with the ILO so as to provide additional training on discrimination in employment and occupation to officials in charge of enforcement, the Committee asks the Government to provide information on any action taken to enhance the capacity of these officials to detect and address discriminatory practices.