Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Albania (Ratification: 1997)

Other comments on C111

Observation

Direct Request

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Article 1 of the Convention. Discrimination on the ground of sex. Sexual harassment. The Committee recalls that sections 3(5) and 12(2) of the Law on Protection from Discrimination of 2010 cover both quid pro quo and hostile environment sexual harassment. It also recalls that section 16 of the Law on Gender Equality in Society of 2008 provides for employers’ obligations in relation to sexual harassment and that recommendations were made by the National Labour Council concerning internal regulations of enterprises addressing sexual harassment. The Committee notes that the report of the Government does not contain any information on the progress made to develop such internal regulations. The Committee however notes that section 32(2) of the Labour Code, as amended in 2005, defines, prohibits and addresses both quid pro quo and hostile environment sexual harassment. The Government also indicates in its report that it has recommended to the Ministry of Justice to include provisions on both sexual and moral harassment in the Criminal Code. Noting the Government’s indication that no complaint of sexual harassment has been received by the Commissioner for Protection against Discrimination or the courts, the Committee notes that, in its concluding observations, the Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern that gender-based violence remains prevalent in Albania (CEDAW/C/ALB/CO/4, 25 July 2016, paragraph 22). The Committee requests the Government to provide information on the measures taken, in cooperation with the social partners, to reduce gender-based violence in employment and occupation by raising awareness on sexual harassment among workers, employers and their organizations, including through the adoption by enterprises of internal regulations on sexual harassment. The Committee requests the Government to provide information on the number, nature and outcome of any cases of sexual harassment examined by the labour inspectorate, the Commissioner for Protection against Discrimination, the People’s Advocate (Ombudsperson) and the courts.

Burden of proof. Harassment. The Committee notes with interest that the Labour Code has been amended by Law No. 136/2015 in respect of sexual harassment and moral harassment. Section 32(1) now provides that the employer has the obligation to respect and protect the employment relationship by taking all necessary measures to ensure the safety, mental and physical health of employees (section 32(1)(a)); to prevent and stop moral and sexual harassment through relevant sanctions (section 32(1)(b)); and to prevent any behaviour that would undermine the dignity of the employee (section 32(1)(c)). Furthermore, section 32(3) prohibits employers from harassing workers with the purpose of, or resulting in, the degradation of working conditions to a degree that may result in a violation of the rights and dignity of the worker, damage the worker’s health, or inflict physical or mental damage to a worker’s future professional career. Section 32(5) provides for the burden of proof in harassment claims, stipulating that “an employee who submits a claim of being harassed in the manner provided for in this provision must submit evidence proving the harassment; at which point the person towards which the complaint is being addressed must prove objectively that the person did not intend the harassment”. The Committee welcomes the emphasis placed on dignity and a safe working environment as the animating values in determining the allocation of the burden of proof in sexual and moral harassment cases. It also welcomes that, according the Labour Code, the employer has a responsibility to take all reasonable measures, both preventative and disciplinary, for ensuring that the workplace environment is free from harassment – in other words a work environment that is not hostile, intimidating, degrading or humiliating. The Committee further welcomes the allocation of the burden of proof contained in the amendments, namely that the complainant has the burden of proving the conduct that is alleged to constitute harassment. Thereafter the burden falls on the perpetrator/employer to prove that the harassment was not intended (objectively determined). The Committee asks the Government to clarify whether the objective determination of intention takes into account the effect of the conduct on the complainant given that even if the conduct was not intended, it may still constitute harassment because it may violate the dignity of the complainant. In the light of the obligation on the employer to take all necessary measures referred to in section 32(1) to have a harassment-free working environment, the Committee also asks the Government to clarify who has the burden of proof that those measures have been taken. The Committee also requests the Government to provide information on the practical application of sections 32(1), (3) and (5) of the Labour Code, including relevant administrative or judicial decisions handed down concerning these provisions, and if so, details thereof.

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee notes that measures have been taken to promote women’s access to employment in the public sector (Decision No. 143 of 12 March 2014 “on procedures of recruitment, selection, probationary period, parallel movement and promotion for civil servants of the executive, low and middle managers categories”), more particularly in male-dominated sectors, such as the state police and the armed forces, where quotas have been introduced (50 per cent of women in new admissions to the police and 15 per cent of women in the armed forces). It notes the Government’s indication that as a result of temporary special measures provided for under the Electoral Code in 2014, women represented 21 per cent of parliamentarians, 36.8 per cent of ministers and 39.1 per cent of vice-ministers. The Government adds that, in 2014, women represented 45 per cent of those who benefited from vocational training in public centres. The Committee notes however that, in its concluding observations, the CEDAW expressed concern about women’s concentration in the informal labour market, especially in the textile and shoe industries, without adequate labour and social protection. The Committee further notes that concerns were also expressed about the situation of rural women who suffer from significant disparities in access to education and employment, as well as from the revival of patriarchal attitudes often resulting in gender-based violence, and who are characterized by a low participation rate in decision-making, especially for those living in remote mountainous areas. The CEDAW was further concerned that only a small percentage of women (8 per cent) own land, that Law No. 33/2012, which provides for joint ownership by both spouses of property acquired during marriage, is not being implemented effectively and that women are frequently discriminated against in matters of inheritance (CEDAW/C/ALB/CO/4, 25 July 2016, paragraphs 30, 36 and 41). The Committee requests the Government to provide information on the nature and impact of the measures taken to improve the participation rate of women in the formal labour market by promoting access to a wider range of occupations and industries, including in decision-making positions. It asks the Government to also indicate any measures taken to improve women’s economic empowerment, including in rural areas and through access to land. The Committee requests the Government to provide up-to-date statistical information on the situation of women and men in both the public and private sectors, disaggregated by economic sector and occupation, specifying the participation rates of women and men in the informal economy.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the Government’s indication that employment promotion programmes have been implemented to give priority to unemployed workers from specific groups, such as the Roma and Egyptian communities, targeting, more particularly, women. As a result, in 2014, 233 out of 9,690 unemployed persons from the Roma and Egyptian communities registered in employment offices, half of whom were women, were placed in employment. It further notes the Government’s indication that 175 unemployed persons from the Roma and Egyptian communities have benefited from different professional courses within the public vocational training centres. The Committee notes the dissemination of informative brochures, leaflets and manuals on legal guarantees provided by the Law on Protection from Discrimination of 2010 that have been distributed in English, Greek, Roma, Macedonian and Montenegrin and notes that the Commissioner for Protection against Discrimination has undertaken awareness-raising activities among the Roma and Egyptian communities. While welcoming the efforts made by the Government, the Committee notes the limited access to the formal labour market of women belonging to ethnic and linguistic minorities, such as Roma and Egyptian women. It further notes that, in its 2015 report, the European Commission against Racism and Intolerance (ECRI) points out the lack of comprehensive and coherent data to evaluate the outcome of the National Strategy for Improving the Living Conditions of the Roma Minority of 2013 and the National Action Plan for Roma inclusion of 2010–15 and that the education outcomes of many Roma and Egyptians remain poor and obstruct their access to the regular labour market (ECRI Report on Albania, 19 March 2015, pages 9 and 10 and paragraph 53). The Committee requests the Government to continue providing information on the proactive measures taken to promote equal opportunity and treatment in access to education and employment for all men and women, irrespective of race, colour and national extraction, and the impact of those measures on the inclusion of the Roma and Egyptian communities in the education system and on the labour market.

Article 3. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that the National Labour Council has not undertaken any activities on non-discrimination in employment and occupation. The Committee welcomes the inclusion in the Labour Code, pursuant to Law No. 136/2015 of 2015, of section 200/1 which provides for the establishment of Regional Tripartite Consultative Councils which would consider issues of common interest to employers’ and workers’ organizations in order to reach acceptable solutions for all parties at the regional level (section 200/1(2)). Noting that the Council of Ministers will determine the rules for the organization and functioning of Regional Tripartite Consultative Councils, the Committee requests the Government to provide information on any progress made in the setting up of such councils, as well as on any activities undertaken at the regional level, under Regional Tripartite Consultative Councils, or at the national level, under the National Labour Council, with respect to non-discrimination and the promotion of equality of opportunity and treatment in employment and occupation.

Article 5. Restrictions on women’s access to employment. The Committee previously noted that pursuant to Decision No. 397 of 1996 on “special protection of pregnant women and motherhood”, women are prohibited from performing work that can endanger their health and safety, or that of their child, and that Decision No. 207 of 9 May 2002 defines the list of hazardous and difficult jobs. The Committee notes that the Government provided a copy of Decision No. 207 of 2002. Noting the large number of jobs and industries that are defined as hazardous and difficult, pursuant to Decision No. 207 of 2002, the Committee requests the Government to examine the possibility of reviewing such a list in light of the development of scientific knowledge and technology and the principle of gender equality, with a view to ensuring that protective measures applicable to women’s employment in certain jobs or industries are still necessary and are not based on stereotypes regarding women’s professional abilities and capabilities and are strictly limited to maternity protection.

Enforcement. The Committee notes the absence of information provided by the Government on any cases of discrimination examined by the competent administrative and judicial authorities. The Committee notes that, in its concluding observations, the CEDAW expressed concern about the limited human and financial resources allocated to the offices of the People’s Advocate (Ombudsperson) and the insufficient consideration given to their recommendations, including those aimed at promoting gender equality and combating sex-based and gender-based discrimination (CEDAW/C/ALB/CO/4, 25 July 2016, paragraph 16). The Committee requests the Government to provide information on the number, nature and outcome of discrimination cases examined by the labour inspectorate, the Commissioner for Protection against Discrimination, the People’s Advocate (Ombudsperson) and the courts, and encourages the Government to ensure sufficient resources are allocated to those structures responsible for implementing the non-discrimination and equality legal framework.