Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

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

Autre commentaire sur C111

Observation

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The Committee notes the observations of the General Federation of Bahrain Trade Unions (GFBTU) received by the Office on 24 September 2020 and 31 August 2022.

Article 1 of the Convention. Discrimination on the basis of political opinion. The Committee notes that the Government affirms that all remaining individual dismissal cases related to the 2011 events have been resolved. The Government refers to its communication to the ILO Director-General dated 10 June 2019 in which it explains that, out of the 55 outstanding cases, 44 individuals were reinstated in their jobs in the private sector and 11 workers accepted financial compensation in lieu of reinstatement in their previous jobs, which amounted to US$1.417 million. The Government further indicates that the Ministry of Labour and Social Development (MLSD) received a communication dated 3 June 2019 from the GFBTU indicating its acceptance of this final settlement. In light of the above, and the fact that the MLSD has not registered any complaints from workers who were reinstated, the Government considers that the cases of the workers dismissed in the wake of the 2011 events and mentioned in the Tripartite Agreements of 2011 and 2014 are closed. The Committee notes however that, in its observations, the GFBTU states that the dismissed workers who were finally reinstated did not receive financial compensation for their unfair dismissal, except in the case of workers from the University of Bahrain and the Bahrain Chamber of Commerce and Industry (BCCI) as already indicated in the Committee’s previous observation. The Committee recalls that, under the Supplementary Tripartite Agreement of 2014, the Government had agreed with the social partners to refer to a tripartite committee the cases which relate to financial claims or compensation that have not been settled and, in the absence of consensus, to refer them to the judiciary. According to the GFBTU no such committee has been set up so far. The Government points out that, despite this alleged failure to set up a tripartite committee to monitor discrimination in employment and occupation in the country, the MLSD and the social partners have been able to settle many pending issues and restates that all avenues for collaboration are open to the GFBTU to discuss its views on this issue and any other issues through the joint bilateral committee. The Committee notes that according to the GFBTU, while some dismissed workers received financial compensation, others have not yet received it. In light of the above, the Committee asks the Government: (i) to clarify whether the tripartite committee referred to in the Supplementary Tripartite Agreementof 2014 has been established; and (ii) to provide information on the number of the outstanding cases mentioned by the GFBTU and the steps taken to resolve them.

Education International. The Committee notes with regret the absence of information on the outstanding cases of teachers dismissed in the wake of the 2011 events and not yet reinstated, in particular the case of the 15 teachers who were members of the now dissolved Bahrain Teachers Association and who are allegedly still unable to obtain employment in private schools, ten years after the events, due to a lack of clearance from the Ministry of Education. The Committee requests the Government to take the necessary measures to examine, without delay, the case of the 15 dismissed teachers and to ensure that if appropriate they receive compensation in respect of their dismissals and that they are cleared to return to their jobs in the education sector, if they still wish to do so.

Act No. 58/2006 on the protection of society from acts of terrorism. The Committee takes note of the Government’s statement that the aforementioned law was formulated to protect society from terrorism, extremism and other phenomena which destabilize social peace and safety and therefore it does not fall under the umbrella of the application of the Convention or the issues which are of concern to the ILO. While recalling what is stated in its 2012 General Survey on the fundamental Conventions (paragraphs 805, 832 and 833),the Committee reiterates its request to the Government: (i) to ensure that the application of Act No. 58/2006 does not in practice infringe the right of workers to be protected from discrimination on grounds of political opinion, as required by the Convention; and (ii) to provide information on the impact of the application of the Act in the fields of employment and occupation, as well as on any cases brought before the courts against any worker alleged to be “abusing the social media”, indicating the charges brought and the outcome.

Article 1(1)(a) and (3). Grounds of discrimination and aspects of employment and occupation. Private and public sectors. Migrant workers, including domestic workers. The Committee notes the introduction by Legislative Decree No. 59 of 2018 of an addition to section 2 – section 2 bis – to Labour Code No. 36 of 2012 which states that: “Discrimination on the grounds of sex, origin, language, religion or belief against workers who are governed by the provisions of this law is hereby prohibited.” The Committee recalls that section 2 of the Labour Code excludes domestic workers and persons regarded as such from the scope of the protection of the Labour Code, except for certain provisions. Domestic workers are covered by the “Tripartite Domestic Workers contract” which regulates the relationship between the recruitment agency, the employer (the household) and the migrant domestic worker, the aim of which is to prevent the exploitation of domestic workers and it is expected to help guarantee the rights of migrant domestic workers. The Committee notes that new section 2 bis has been added to the list of the provisions of the Labour Code that apply to domestic workers and persons regarded as such (such as for example, sections 6, 19, 20, 21, 37, 38, 40, 48, 49, 58, 116, 183, 185 and Parts Twelve and Thirteen). The Government indicates that, following the adoption of this amendment, it has launched an information campaign through messages disseminated via the MLSD website, social media networks related to the Ministry, several awareness-raising lectures at the Ministry and in workplaces, with the embassies of labour-exporting countries and a number of civil society institutions and other bodies. It has also set up a hotline which can be contacted to request clarification and replies to any query.

The Committee welcomes the introduction of this formal general prohibition of discrimination in the Labour Code and its extension to domestic workers and persons regarded as such. The Committee notes however that, despite its previous observations, this amendment is still lacking as: (1) the new section 2 bis of the Labour Code does not mention all of the grounds of discrimination formally listed in the Convention; (2) the Labour Code still does not provide a comprehensive definition of discrimination, as well as a prohibition of direct and indirect discrimination, with respect to all aspects of employment (in other words, access to vocational training, to employment and to particular occupations, and terms and conditions of employment). Once again, the Committee asks the Government to amend both the Labour Code and the Civil Service Instructions No. 16/2016 to provide for: (i) a comprehensive definition of discrimination which should include direct and indirect discrimination and cover the seven grounds listed in the Convention; and (ii) protection against discrimination in all forms of employment and occupation.

Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication that Decree No. 59 of 2018 amending Labour Law No. 36 of 2012 formally prohibits sexual harassment in the workplace, by adding under Chapter 17 on “Sanctions” a section 192 bis which provides that: “A sentence of imprisonment of a maximum of one year or a maximum fine of 100 dinars [approximately US$265] shall be imposed on any worker who, in the course of, or for reasons of employment, sexually harasses a co-worker by a gesture, verbal or physical conduct, or by any other means. A sentence of imprisonment for a minimum term of six months or a minimum fine of 500 dinars [US$1,326] and a maximum fine of 1,000 dinars [US$2,653] shall be imposed whenever such a crime is committed by the employer or by his representative”. In that regard, the Committee notes that although section 192 bis provides for sanctions against sexual harassment, sexual harassment is not formally defined in the labour legislation. The Penal Code prescribes the sanctions available in the case of sexual harassment but does not include a clear and comprehensive definition of sexual harassment and only addresses cases where a worker is subject to sexual harassment from a co-worker, not when the perpetrator is a representative of the employer or a third party. The Committee takes note of the Government’s statements that: (1) issues related to exposing a worker to discrimination by another colleague at work cannot be included in the Labour Law which only governs the relationship between employers, or their representatives, and their workers; (2) a worker victim of discrimination by a co-worker or a client should use other laws and regulations, provided the allegations are considered to be a crime or a misdemeanour towards individuals; and (3) this worker can submit his/her complaint before administrative bodies (MLSD, Civil Service Diwan, the General Secretariat for Grievances, the National Institution for Human Rights) or the courts. The Committee notes that under the new amendment, discrimination (and implicitly sexual harassment) is criminalized. It also notes that, in response to its previous statement – that a lack of complaints is not always an indicator of an absence of discrimination in practice – the Government affirms that, even if sexual harassment was addressed by the civil or labour law, in addition to the Penal Code, this does not mean that there would be cases of discrimination registered by the competent authorities, in view of: “(1) the legal and legislative progress in the Kingdom of Bahrain, and (2) the advanced cultural and educational levels of the labour force to exercise civil and political rights”. The Committee notes the Government’s statement that, although awareness-raising and guidance in this area is a joint responsibility of relevant government bodies, social partners and civil society institutions, the MLSD is considering launching an information campaign to raise awareness. However, the Committee once again strongly urges the Government to take steps to adopt a clear and comprehensive definition and prohibition of sexual harassment. The Committee also asks the Government to provide detailed information on the remedies available to a victim in the event of a proven case of sexual harassment lodged with the various judicial, quasi-judicial and administrative bodies, and on any developments concerning the future awareness-raising campaign against sexual harassment in the world of work. The Committee reminds the Government again that an absence of complaints does not mean that harassment is not occurring.

Article 2. Equality of opportunity and treatment for men and women. Legislation. The Committee notes with interest that Legislative Decree No. 16 of 2021, which amends several sections of the Labour Code, has added a second paragraph to section 39 of the Labour Code which prohibits discrimination in wages between male and female workers for work of equal value.

As regards the presence of Bahraini women in the economic, social and political spheres, the Committee takes notes of the information communicated by the Government, such as, for example, their presence in the legislative authorities (the current Chairperson of the Council of Representatives is a woman, as well as a number of chairs of parliamentary committees), the fact that they are heading important ministries (Minister of Health, Minister of Housing) and that a number of ambassadors are women, and so on. According to the Government, women currently comprise 40 per cent of the total workforce in the public and private sectors which is high compared with labour markets in the Middle East and North Africa region. The Supreme Council for Women – which the Government says plays an important role in the promotion and empowerment of women in society and addresses the various forms of discrimination against them – indicates that the percentage of women in administrative posts has reached 46 per cent and that they are progressively assuming leadership positions on administrative boards and are playing an important role as entrepreneurs and in the ownership of small and medium-sized enterprises. In the last four years, the MLSD has inaugurated recruitment programmes for women to encourage their employment via part-time work and remote working, which have contributed to the recruitment of some 7,000 Bahraini women. As regards training and vocational programmes, the statistics indicate that the percentage of women who benefited from training is quite high: 49 per cent in 2019, 29 per cent in 2020 (reflecting the impact of COVID-19 pandemic) and 60 per cent in 2021. Furthermore, the Government draws the Committee’s attention to the National Plan for the Advancement of the Bahraini Women (2013–2022) which encompasses several pillars aimed at enhancing women’s participation in the labour market, such as focusing on education and training, economic empowerment and lifelong learning. In that regard, the Committee welcomes the information showing that, in the field of education (enrolment in secondary education and at university), the country has nearly closed the gender gap, to 98 per cent (compared with a global average of 95 per cent). As for proactive measures taken or envisaged to address inequality based on societal and traditional reasons, the Committee notes the Government’s statement that Bahraini society is an open society which accepts the presence of women in all posts without exception, in addition to supporting them in their education and in career promotion. The Committee asks the Government to provide information on the results achieved following the implementation of the 2013–2022 National Plan, as well as the impact of the above-mentioned measures and initiatives adopted.

Flexi work permit (Flexi permit). The Government recalls that the Flexi permit gives an opportunity to migrant workers in an irregular situation from specific categories to stay and work legally in the country without being tied to an employer (subject to annual fees). It allows them to benefit from health services, as well as from insurance against occupational injuries and to resort to the competent authorities to submit complaints, in addition to the possibility of being under contract with several employers or one employer according to a worker’s desire throughout the period of his/her residence. The Government stresses the efforts made during the COVID-19 pandemic by, for example, not imposing the repatriation of migrant workers during the pandemic and freezing all fees related to the renewal of work permits.

Freedom to transfer to another employer. The Committee notes that, by virtue of Law No. 19 Regulating the Labour Market (2006), a migrant worker has the right to transfer to another employer without the approval of the current employer, after 12 months of employment with the current employer, while taking into account the specific period of 90 days’ notice required. The Government explains that, considering the costs incurred by the employer in recruiting a worker from abroad, this 12-month period during which a worker is legally prohibited from transferring to another employer is reasonable. However, this condition does not apply where a worker has proved that he/she was exposed to exploitation or abuse by an employer such as the non-payment of wages, reduced wages, or a violation of a worker’s legitimate rights in accordance with the Labour Law. In such a case, workers are authorized to transfer to another employer immediately without the approval of their current employer. During the years 2019–21, more than 186,000 workers were transferred with or without the approval of the employer.

The wage protection system (WPS). The Committee recalls that the WPS is a transparent means of securing the timely payment of employee salaries and regulating employer non-compliance, whereby employers are obliged to pay salaries in local currency at least once a month into a locally certified bank account. In that regard, the Government indicates that Ministerial Order No. 22 of 2021 sets down a gradual timeline for the full introduction of this system, starting with enterprises employing more than 500 workers and then to small and medium-sized enterprises. The Committee notes that the legislation also provides that an employer who fails repeatedly to meets their obligation in this regard may in future be denied a work permit for a migrant worker. The Committee takes note of the active steps taken by the Government to ensure better protection for migrant workers in general and in particular during the COVID-19 pandemic.

Noting that the Flexi permit system is only open to restrictive categories of migrant workers and is relatively costly, the Committee encourages the Government to consider reducing the fees and relaxing the eligibility criteria to enable a greater number of migrants to apply for a Flexi permit. It also asks the Government to provide statistical information on the number of migrant workers who have transferred to new employers before the expiry of the contract. The Committee also asks the Government to provide information on the impact of the Tripartite Domestic Workers contract on reducing migrant workers’ vulnerability to exploitation.

Article 5. Special measures of protection for women. The Committee notes with satisfaction the repeal of Ministerial Order No. 32 of 2013 which prohibited women’s employment in specific sectors and occupations in addition to that of Ministerial Order No. 16 of 2013 regarding the occupations in which, and the circumstances under which, the employment of women at night was prohibited. Decrees Nos 50 and 51 of 2021, on night work and occupations, respectively, have lifted restrictions on women’s right to work at night. The Government also indicates that, in addition, several ministerial orders were adopted repealing all previous exceptions relating to women’s employment at night and the prohibition of their employment in some occupations and roles, in undertakings prescribed by the Labour Law. The Government states that, as a consequence, women’s employment has become possible in all economic sectors and in different occupations – without exception – in accordance with the principle enshrined in the Convention. While taking due note of this information, the Committee notes that Decrees Nos 50 and 51 of 2021 do not provide for any protection to ensure that pregnant or breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother’s health or that of the child. The Committee therefore asks the Government to indicate the measures taken to protect the health of pregnant or breastfeeding workers, as well as the health of their child, in these circumstances.

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