Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Albanie (Ratification: 1997)

Autre commentaire sur C111

Observation

Demande directe

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In response to the Committee’s previous requests, the Government indicates that few claims concerning discrimination based on sex in the workplace were brought before the Labour and Social Services Inspection and explains that victims are reluctant to report discrimination and that, where cases are reported, there are difficulties to verify the reported facts or circumstances. In this regard, the Committee notes that, in the National Review on the Implementation of the Beijing Platform for Action (Beijing+25), the Government recalls a survey conducted by the People’s Advocate in 2017, according to which further measures are necessary in relation to the very limited number of cases of sexual harassment in jurisprudence, which is due to factors related to education and social awareness, the position of women in society, the lack of knowledge and awareness, and the lack of trust in institutions. The Committee also notes the Government’s indication that the Minister of Finance and Economy has started the procedure for the ratification of the ILO Violence and Harassment Convention, 2019 (No. 190). The Committee asks the Government to provide information on any measures taken to increase awareness about discrimination based on sex and sexual harassment and their underlying causes such as gender stereotypes and prejudices, and to address the causes for underreporting, such as the difficulty to access complaint mechanisms and the fear of reprisals, and information on the procedures available to remedy discrimination based on sex and sexual harassment.

Burden of proof. Harassment. In its previous comments, the Committee asked the Government to provide clarifications on the application of section 32.5 of the Labour Code regarding the burden of proof in harassment claims, and in particular regarding who has the burden to prove that the employer took, in line with section 32(1) of the same law, all necessary measures to prevent harassment. It also asked the Government to provide clarifications on the effects of the existence of the intention of harassment on the complaint. The Committee notes that the Government refers to the wording section 32.5 and indicates that, when assessing acts as moral harassment and harassment, considerations should also be made to the nature of the job, the duties and functions of the employee, the traditions and customs of the city/area and the meaning certain actions have in that area. The Committee notes that the Government does not fully reply to the issues raised, as section 32.5 of the Labour Code, when establishing the shift of the burden of proof, provides that “the person towards which the complaint is being addressed” shall prove that the person “did not intend the harassment”. The Committee would therefore like to recall that, the lack of intent or the existence of intent should not be relevant in harassment issues. It also highlights that the shift of the burden of proof is a useful means of correcting a situation of inequality where, in cases related to equality and non-discrimination, much of the information needed is in the hands of the employer (see 2012 General Survey on the fundamental Conventions, paragraph 885). The Committee observes that it is not clear, under national legislation, who has the burden to prove that the employer took the necessary steps to have a working environment free from harassment. Therefore, the Committee reiterates its request to the Government to clarify: (i) whether, even if the conduct was not intended, it may still constitute harassment and be addressed as such, because it may have the effect of violating the dignity of the complainant; and (ii) who has the burden to prove that the employer took all necessary measures to have a harassment-free working environment.

Articles 2 and 3. Equality of opportunity and treatment for men and women. The Committee notes that the Government makes reference to: (1) the National Employment and Skills Strategy (NESS) 2014–2020 (extended until 2022), which has improved the quality and gender sensitivity of labour market information and has promoted social entrepreneurship and economic empowerment of women; (2) the planning of a gender-sensitive review of the Skill Need Survey (SNS); (3) adoption of Law No.15/2019 on the promotion of employment, the establishment of the National Agency for Employment and Skills (NAES) in 2019 and the inclusion, in some employment programmes, of financial support to cover kindergarten and nurseries costs; and (4) the consideration of gender-related indicators when monitoring employment programmes and labour market information. The Government also indicates that the labour participation of women increased by 12 per cent between 2013 and 2019, but that the gender gap in employment participation increased from 11.9 per cent in 2016 to 14 per cent in 2019. It also provides statistical information on men’s and women’s participation in different sectors and occupations in the public and private sector and in the informal economy. Regarding formal employment, the data provided shows that women who are employed are in the public sector, in public administration, education and health, and when they are in the private sector, in trade transport, accommodation and food services. Women in informal employment seem to participate more in construction and trade, transport, hotel, business and administrative services. Regarding the situation of women in rural areas, the Committee notes that the National Strategy and Action Plan on Gender Equality 2016–2020 has as an objective the economic empowerment of women in rural areas, including by increasing the formalization of jobs and ensuring the enjoyment of property rights on agricultural land (objective 1.3). It also notes that the Economic Reform Programme 2020–2022 refers to a land reform which will enable, protect and respect the property rights of all women, men and young people. In addition, the National Strategy for Rural and Agricultural Development 2014–2020 includes the support for women-run enterprises and farms and indicators disaggregated by gender. The Committee asks the Government to provide information of the measures taken to scale-up the outreach and impact of the different equality and employment policy measures to promote equality between women and men in employment and occupation, including to decrease the gender gap in employment participation. The Committee also requests the Government to provide information on how such measures particularly address the situation of women in rural areas and in informal work, in particular their access to productive resources such as land and credit. It also asks the Government to provide information on the impact of the NESS 2014–2020, currently extended until 2022, on women’s economic empowerment.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the Government’s indication that the Ministry of Foreign Affairs has taken measures to design policies targeting people from disadvantaged groups at risk of exclusion, including Roma and Egyptian communities. The Committee notes that the National Action Plan for the Integration of Roma and Egyptians 2016–2020 includes employment and vocational education and training as a priority sector and mentions several factors linked to the low participation of Roma and Egyptians in employment programmes. The Plan includes poverty and the need to provide for basic needs, discrimination and stigma, lack of ID cards, and little knowledge on the existence of employment programmes. In this regard, the Committee notes that, according to the Albania Report to the European Commission for 2020, the implementation of the National Action Plan reached limited progress because it does not sufficiently increase capacities of the participants, and the next one should be adopted before the end of the year. The Committee further notes that the Government endorsed the Declaration of Western Balkans Partners on Roma Integration within the EU Enlargement Process (Poznan Declaration) in 2019. The Committee also observes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) recommended to Albania to strengthen the implementation of the National Action Plan and to include a gender-perspective in it in order to address multiple and intersecting forms of discrimination affecting in particular women in the Roma and Egyptian communities (CERD/C/ALB/CO/9-12, 2 January 2019 paragraphs 19–22). In the framework of the Universal Periodic Review, the Government also indicated that a network has been created among key ministries to improve coordination in the field of Roma and Egyptian integration (A/HRC/WG.6/33/ALB/1, 22 February 2019, paragraph 119). The Committee asks the Government to provide information on the results achieved of the National Action Plan for the Integration of Roma and Egyptians 2016–2020 and on the content of the future Plan. The Committee also asks the Government to provide information on any other measures taken to increase the labour participation of Roma and Egyptian people, and in particular to address the underlying causes and barriers that prevent them from enjoying equality and non-discrimination in employment and occupation, such as their low level of education and vocational training and discrimination and stigma.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that the tripartite regional consultative councils have not been established. It notes from the Government’s report that the relevant draft regulations that have been prepared, in consultation with the social partners and with the cooperation of the ILO, have not been approved yet. The Government also indicates that the People’s Advocate carried out a round-table consultation including representatives of the private sector and trade unions on the topic of harassment and sexual harassment, and that the National Labour Council meeting scheduled on March 2020 to discuss the ILO Violence and Harassment Convention, 2019 (No. 190), and its accompanying Recommendation No. 206, could not take place due to the sanitary situation regarding Covid-19 pandemic. Recalling the key role of employers’ and workers’ organizations in the implementation of the Convention, the Committee asks the Government to provide information on any measures taken to ensure that employers’ and worker’s organizations are made aware of, and promote the principle of the Convention.

Article 5. Restrictions on women’s access to employment. Noting that the Government’s report does not contain any information in this regard, the Committee reiterates its request that the Government examines the possibility of reviewing the list of jobs prohibited for women in Decision No. 207 of 2002 in light of the development of scientific knowledge and technology and the principle of gender equality, with a view to ensuring that prohibitions applicable to women’s employment in certain jobs or industries are not based on stereotypes regarding women’s professional abilities and capabilities and are strictly limited to maternity protection.

Awareness-raising and enforcement. The Committee notes the Government’s indication that section 9 of the Labour Code, which prohibits discrimination in employment and occupation, is implemented by courts, the Commissioner for Protection from Discrimination and the State Labour and Social Services Inspectorate. The Committee takes note of the five judicial decisions transmitted by the Government. It also observes that, in 2019: (1) there were 42 judicial proceedings concerning equality and non-discrimination in employment; (2) the Tirana Judicial District Court tried ten cases which mainly concerned compensation for discrimination based on political opinions and origin; (3) two cases were treated by the State Labour and Social Services Inspectorate; and (4) one complaint was registered before the People’s Advocate. The Committee notes the Government’s general indication that the State Inspectorate carries out awareness raising measures addressed to employers. The Committee further notes from the Albania Report to the European Commission for 2020 that the implementation and enforcement of the Labour Code need close monitoring and that, while the impact of labour inspections progressed, the capacity of the State Labour Inspectorate needs to be further strengthened. The Committee asks the Government to continue providing information on: (i) the number, nature and outcomes of cases of discrimination in employment and occupation examined by the Labour Inspectorate, the Commissioner for Protection against Discrimination, the People’s Advocate and the courts; and (ii) the specific measures taken by the Labour Inspectorate to raise awareness among social partners of the principles of equality and non-discrimination, in particular with respect to the discrimination grounds added to the Labour Code in 2015. The Committee also asks the Government to continue strengthening the enforcement of the non-discrimination and equality legal framework by ensuring effective access to remedies for victims and sufficient resources and adequate training for relevant institutions.