Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Portugal (Ratification: 1959)

Autre commentaire sur C111

Observation

Demande directe

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN) communicated with the Government’s report.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Discrimination based on sex. The Committee previously noted that: (1) section 24(1) of the Labour Code, as amended in 2015, includes “gender identity” as a prohibited ground of discrimination; and (2) Law No. 38/2018 of 7 August 2018, establishes a general prohibition of direct or indirect discrimination on the grounds of gender identity, gender characteristics and gender expression. It further noted the adoption of the Action Plan to combat discrimination linked to sexual orientation and gender identity and expression for 2018–21 (PAIOEC). The Committee notes the Government’s general statement, in its report, that activities were undertaken for companies to raise awareness of and combat discrimination based on sexual orientation, gender identity or expression and gender characteristics. It observes that no specific information is provided on any case of discrimination based on gender identity, gender characteristics or gender expression. Noting that the Action Plan to combat discrimination linked to sexual orientation and gender identity and expression ended in 2021, the Committee asks the Government to provide information on any assessment made of its implementation and the results achieved, as well as on any new action plan elaborated. It further asks the Government to provide information on the number, nature and outcome of any cases or complaints of discrimination on the grounds of gender identity, gender characteristics and gender expression in employment and occupation dealt with by the labour inspectorate, the courts or any other competent authorities.

Sexual harassment. The Committee previously noted: (1) the adoption of Law No. 73/2017 of 16 August 2017, which introduces an obligation on companies with more than seven employees to adopt a code of conduct on harassment, including sexual harassment, in the workplace and start a disciplinary process when an alleged situation of harassment in the company is reported; and (2) the publication by the Commission for Equality in Labour and Employment (CITE) of a Guide for the elaboration of a code of conduct for the prevention and combat of harassment at work. Noting that no information was provided by the Government regarding the number of codes of conduct on harassment in the workplace adopted by companies and their impact, the Committee notes the Government’s indication that several institutions, such as the CITE and the Working Conditions Authority (ACT), have elaborated a set of technical tools on sexual harassment at the workplace, the majority of which are available online. These resources provide information on the provisions of Law No. 73/2017, as well as on the procedures and resources available for victims of harassment. In that regard, the Government adds that victims of harassment can benefit from free legal and psychological assistance from the CITE and make online complaints through the CITE, ACT or General Inspectorate of Justice Services (IGSJ) websites, thus ensuring privacy and confidentiality of the information provided. The Committee welcomes this information. It notes, from the statistical information provided by the Government, that the number of cases of ACT decreased from 24 cases in 2017 to 14 cases of harassment in 2019, while, from January 2019 to May 2021, no complaint on sexual harassment was received by CITE. The Committee further observes, from the information forwarded by the Government, that from June 2017 to May 2021, the Finance General Inspection (IGF) registered 62 cases of sexual harassment at work in the public sector. In light of the low level of reporting of cases of sexual harassment, particularly in the private sector, the Committee asks the Government to continue to provide information on the measures adopted to raise awareness among employers and workers and their organizations on sexual harassment in employment and occupation, as well as on the procedures available to victims of sexual harassment. In that regard, it asks the Government to continue to provide information on the number of cases of sexual harassment at work identified both in the public and private sectors, the sanctions imposed and remedies granted. The Committee again asks the Government to provide information on the number of codes of conduct on harassment in the workplace adopted by companies, as a result of the obligation provided for into Law No. 73/2017, as well as on any assessment made regarding the implementation of the legislation.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee previously noted that, while section 24(1) of the Labour Code prohibits discrimination on the ground of disability, concern was expressed about discrimination and inequality in employment, as well as regarding the working conditions of persons with disability, mainly employed in occupational activity centres. The Committee notes with interest : (1) the adoption of the National Strategy for the Inclusion of People with Disabilities for 2021-25 (ENIPD), through Resolution of the Council of Ministers No. 119/2021 of 31 August 2021, which sets specific actions in the areas of education and qualification, as well as work, employment and professional training of persons with disabilities; and (2) the adoption of Law No. 4/2019 of 10 January 2019, regulating the system of employment quotas for people with disabilities with a degree of incapacity equal to or greater than 60 per cent in private companies. The system of employment quotas provides that medium-sized companies with more than 75 employees must employ at least 1 per cent of persons with disabilities, while large enterprises with more than 250 employees are required to employ at least 2 per cent. Such quotas shall be complied with by 2024 at the latest and enterprises who do not meet their quota obligation will be subject to a fine. The Committee observes that, according to the data from the Organisation for Economic Co-operation and Development (OECD), in 2017, 98 per cent of enterprises in Portugal were micro and small enterprises, which are thus excluded from the scope of application of Law No. 4/2019. The Committee welcomes the Government’s indication regarding the establishment of the “Inclusive Employer Entity Award” (Marca Entidade Empregadora Inclusiva) in order to publicly recognize open and inclusive management practices developed by employers in relation to people with disabilities. It also notes that, in its 2021 Country Report on Non-Discrimination in Portugal, the European Commission highlights that, in 2019, the National Institute for Rehabilitation (INR) registered 1,274 complaints for discrimination on the ground of disability, which represents a 30 per cent increase compared with 2019 (p. 14). The Committee further notes that, in its 2020 report, the Disability and Human Rights Observatory (ODDH) highlights that while unemployment among people with disabilities has slowed down since 2016, in the first half of 2020 there was a growth of 10 per cent compared to 2019, thus clearly showing the negative impacts of the COVID-19 pandemic on the employment of persons with disabilities. The ODDH adds that available data show that in 2018, only 0.55 per cent of persons employed in the private sector were persons with disabilities, while they represented 2.56 per cent of the total number of employees in the public sector (pp. 30, 34 and 36). The Committee asks the Government to continue to provide information on the concrete measures implemented, in particular in the framework of the National Strategy for the Inclusion of People with Disabilities for 2021-25, to prevent and address discrimination against persons with disabilities in all aspects of employment and occupation, in particular in the context of the COVID-19 pandemic, and on the results achieved. It also asks the Government to provide updated information on the employment rates of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market), both in the public and private sectors.

Articles 2 and 3. Equality of opportunity and treatment for men and women. The Committee previously noted the range of legislative and policy measures adopted by the Government to improve access for women to employment and to better reconcile work and family responsibilities. The Committee welcomes the Government’s statement that several measures have been implemented to promote equality of opportunity and treatment in law and in practice and results were achieved, in the framework of the National Strategy for Equality and Non Discrimination for 2018–2030 (ENIND) and its Action Plan for Equality for Women and Men 2018-2021 (PAIMH). The Government refers to several awareness-raising activities undertaken, in collaboration with the CITE, to combat gender stereotypes and horizontal occupational segregation, for example in the security forces, as well as vertical segregation, including through the implementation, since July 2019, of the Programme “Gender equality opportunities in senior management” aimed at promoting the access of women to top management positions, in collaboration with the CIP. The Government indicates that, in 2020, women represented 61.9 per cent of the total number of persons who benefited from employment support measures. It however states that women continue to suffer from structural disadvantages, more particularly as a result of the unbalanced distribution of unpaid care work that hinder their full participation in the labour market, in particular in sectors with more social and economic value. The Committee notes the Government’s indication that more actions are needed to deconstruct gender stereotypes and attract more women in sectors where they are under-represented such as in engineering and technology. In that regard, the Committee notes that, in their observations, both the CIP and the CGTP-IN highlight that, despite the adoption of a substantive number of legislative instruments that guarantee gender equality, discrimination between men and women persists in practice, in terms of access to certain positions and professions, in particular decision-making positions. The CIP considers that it is necessary to combat gender stereotypes and cultural barriers in order to ensure men’s and women’s access to a greater diversity of careers, including through efforts aimed at enhancing women’s participation in technical and scientific education and vocational training, as well as women entrepreneurship, as a complementary way to increase the number of women in decision-making positions. The CIP highlights the important role that should be played by companies in that regard, indicating that if their objective is to be more competitive, they need to rely on best available competences in terms of human resources, whether they are women or men. The CIP adds that promoting equality is not just a matter of ethics, or politically and legally enforceable goals, but also generates competitive advantages, enabling employees to contribute decisively to the full realization of the companies' potential. The Committee notes that, according to the 2019 annual report of the CITE, the difference between men and women employment rates remained high at 9.8 percentage points in 2018 and 2019 (60.7 per cent and 50.9 per cent, respectively). It further notes the persistence of occupational gender segregation of the labour market with women being still highly concentrated in human health and social support activities (83.7 per cent of women), education (77.2 per cent of women) and hotel, restaurant and similar activities (58.1 per cent of women). In that regard, the Committee observes that these trends remain mainly unchanged over the past three years. Furthermore, while women reached higher levels of education and qualification than men (60.6 per cent and 39.4 per cent, respectively), there were still fewer women than men in high-ranking and managerial positions (33.9 per cent and 66.1 per cent, respectively). In that regard, the Committee notes that, in its concluding observations, the United Nations (UN) Human Rights Committee expressed specific concern about the persistently low representation of women in senior positions in the private sector (CCPR/C/PRT/CO/5, 28 April 2020, paragraph 20). The Committee further notes that, in 2019, 82 complaints for discrimination based on sex were received by the CITE, five were filed by men and 77 by women. Regarding the persistent unbalanced distribution of unpaid care work between men and women that hinder full participation of women in the labour market, in particular in higher positions, the Committee refers to its 2021 direct request under the Workers with Family Responsibilities Convention, 1981 (No. 156). In light of the persistent gender stereotypes and occupational gender segregation of the labour market and the absence of substantial progress made in the past years, the Committee urges the Government to strengthen its efforts to promote effective equality of treatment and opportunity for men and women in employment and occupation, in both law and practice, including in the framework of the National Strategy for Equality and Non Discrimination for 2018–2030 and its accompanying action plans. It asks the Government to provide information on the concrete measures implemented, including in collaboration with the social partners, in order to: (i) address vertical and horizontal occupational gender segregation, including through the diversification of the areas of education and vocational training for women as well as vocational guidance, and (ii) raise public awareness, including in and through education, with a view to combating stereotypes regarding women’s professional aspirations, preferences and capabilities, and their role and responsibilities in the family and society. The Committee further asks the Government to provide information on the results of any survey conducted on gender equality and discrimination at work, as well as updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

Equality plans. The Committee previously noted that section 7 of Law No. 62/2017 of 1 August 2017 imposes on enterprises in both the public and private sectors the duty to develop annual equality plans in order to achieve equal opportunities and equal treatment of women and men, and to promote the reconciliation of professional and family life within the company. The Committee notes the Government’s indication that, despite their legal obligations, enterprises still face serious difficulties in elaborating their gender equality plans as well as in realizing the necessity and importance of their elaboration. In this regard, the Committee welcomes the Government’s indication that a guide on the elaboration of annual equality plans was published in June 2019 in order to encourage and support companies in the elaboration of their plans. The Committee notes that this guide, which is available on the CITE’s website, covers six main areas of actions: access to employment and vocational training; working conditions; remuneration; parental leave; reconciliation between work and family responsibilities and prevention of harassment at work. The Committee notes that, in its 2019 report, the CITE indicates that only 61 annual equality plans have been elaborated so far, which corresponds to only 16 per cent of companies fulfilling their obligations. In light of the very low number of annual equality plans which have been adopted so far despite the legal obligation to do so, the Committee asks the Government to strengthen its efforts to raise awareness among workers, employers and their organizations of the requirements of the legislation, such as the elaboration of annual equality plans and the promotion of the reconciliation of work and family responsibilities. It asks the Government to provide information on any measures undertaken to that end and the results achieved, as well as on any obstacles identified. The Committee further asks the Government to continue to provide information on the number of equality plans adopted, both in public and private enterprises

Equality of opportunity and treatment irrespective of race, colour, national extraction or social origin. The Committee welcomes: (1) the establishment of the Working Group for preventing and combating racism and discrimination, by Ordinance No. 309-A/2021 of 8 January 2021, in order to submit recommendations for public policies on preventing and combating racism and ethnic-racial discrimination; and (2) the adoption of the National Plan to Combat Racism and Discrimination 2021-25 (PNCRD), by Resolution of the Council of Ministers No. 101/2021 of 28 July 2021, which sets as specific objective the deconstruction of stereotypes and implementation of integrated action to fight against inequalities, in particular in higher education and work and employment. The Committee notes that, in its observations, the CGTP-IN highlights that discrimination is increasing, in particular against migrant, refugees and foreign workers, who are mostly less qualified and work under precarious conditions, with lower pay, and suffer from a higher number of injury at work. In that regard, the Committee refers to its 2021 direct requests on the Migration for Employment Convention (Revised), 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), regarding more particularly the persistent situation of vulnerability to discrimination in employment of migrant workers. The Committee notes, from the 2019 report on equality and non-discrimination regarding racial and ethnic origin, colour, nationality, ancestry and territory of origin of the Commission for Equality and Against Racial Discrimination (CICDR), that 436 complaints were received by the CICDR in 2019, representing an increase of around 26 per cent compared with 2018. Almost 20 per cent of these complaints refer to discrimination against African descent population (pp. 10-11). In that regard, the Committee notes that, in its 2020 concluding observations, the UN Human Rights Committee expressed specific concern at the situation of African descent population who continue to suffer from discrimination, especially in the areas of education and employment (CCPR/C/PRT/CO/5, paragraph 12). It notes that, in April 2021, the UN Committee on Economic, Social and Cultural Rights (CESCR) also asked the Government to provide information on the measures taken to address discrimination against workers of African descent in the labour market that results in higher unemployment among them and their over-representation in low-paid jobs (E/C.12/PRT/Q/5, 1 April 2021, paragraph 16). The Committee urges the Government to step up its efforts in order to combat discrimination and ensure equality of opportunity and treatment in employment and occupation for migrant, refugees and foreign workers, including persons of African descent. It asks the Government to provide information on the specific measures undertaken to that end, in particular in the framework of the National Plan to Combat Racism and Discrimination 2021-25 and as a follow-up to the recommendations made by the Working Group for the prevention and combating of racism and discrimination. The Committee asks the Government to provide information on any study or assessment made of the impact of these measures, as well as any available statistical data on the participation of these categories of workers in education, vocational training, and the labour market.

Roma people. The Committee previously noted the National Strategy for Integration of Roma Communities 2013–22 (ENICC) and requested the Government to continue to take specific measures to foster the integration of Roma people, particularly with respect to access to employment and education. The Committee welcomes the detailed information provided by the Government on the measures implemented in the framework of the ENICC. More particularly, it notes the Government’s statement that several specific projects were carried out, mainly in order to: (1) prevent school dropouts and support secondary schools students through the awarding of scholarships, including through the “ROMA Educa” programme which was launched in 2019; and (2) facilitate integration of Roma into the labour market. It notes that several initiatives were implemented by local and regional employment services, with the training and designation of specific interlocutors for Roma people. It further notes that, in 2019, the Observatory for Roma Communities (ObCig) awarded for the first time the “OBCIG Empresas Integradoras” award, which aims at recognizing companies that employ five or more Roma people and inspire other employing entities in the implementation of practices that promote the integration of Roma people and combat discrimination based on ethnic origin. The Committee however notes the Government’s statement that the implementation of the ENICC still faces some constraints and difficulties in practice and observes the decreasing trend in the overall execution rate of ENICC targets, from 77 per cent in 2017 to 68.4 per cent in 2018 and 60.14 per cent in 2019. It further notes that, in its 2021 conclusions, the European Commission against Racism and Intolerance (ECRI) highlights that despite some progress, the overall enrolment rate of Roma pupils in third cycle and secondary education level remains low at 18.6 per cent and 2.6 per cent respectively (p. 6). The Committee notes that, in its 2020 concluding observations, the UN Human Rights Committee also expressed concern at: (1) the high dropout rates at school and their low employment rate; and (2) reports that Roma people continue to suffer from discrimination, especially in the areas of education, employment and housing (CCPR/C/PRT/CO/5, paragraph 12). In that regard, the Committee notes the Government’s indication that, between June 2017 and December 2020, the CICDR received 269 complaints related to cases of alleged discrimination against Roma. The Committee asks the Government to strengthen its efforts to combat stigma and discrimination against Roma people in order to ensure them effective equality of treatment and opportunity in education, training and employment. It asks the Government to continue to provide information on the measures taken to that end, in particular in the framework of the National Strategy for Integration of Roma Communities 2013–22 or any follow-up strategy adopted, as well as on any study or report available on their impact. The Committee again asks the Government to provide statistical data, disaggregated by sex, on the participation of Roma people in education, professional and vocational training courses, as well as in the labour market.

Article 3. Collective agreements and gender equality. The Committee previously noted that, pursuant to the amendments made to section 479 of the Labour Code, a preliminary evaluation of collective agreements was to be undertaken by the CITE, and any provision found not to comply with the law in terms of equality and non-discrimination, was to be referred to the Attorney-General’s Office. The Committee notes that the Government does not provide information on the application of this provision in practice. It however notes that, in its 2019 annual report, the CITE indicated that it identified a total of 57 unlawful provisions in 240 instruments of collective labour regulation (or 23.8 per cent), thus representing a slight increase since 2016 (22.3 per cent). Noting the absence of information from the Government, the Committee again asks the Government to provide information on: (i) the evaluation of collective agreements from a gender perspective; (ii) the nature or content of the unlawful provisions identified; (iii) the follow-up given to the parties to the collective agreements regarding those provisions found not to be in compliance with equality and non-discrimination principle; and (iv) the impact of this process on improving the inclusion in collective agreements of clauses of equality of opportunity and treatment for men and women.

Enforcement. The Committee notes, from the statistical information provided by the Government, that while the number of labour inspections carried out by the ACT decreased from 37,482 in 2017 to 31,455 in 2019, there was a significant increase in the number of violations detected in the private sector regarding the prohibition of discrimination (from three violations in 2017 to 54 in 2019), while the amount of corresponding fines applied increased from 15,708 euros (EUR) in 2017 to 484,908 euros, in 2019. The Government adds that three judicial decisions were handed down by the Supreme Court of Justice on issues covered by the Convention. The Committee asks the Government to continue to provide information on the number, nature and outcome of cases of discrimination in employment and occupation dealt with by the Working Conditions Authority, the courts or any other competent authorities.