Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Nepal (Ratification: 1974)

Other comments on C111

Observation

Direct Request

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Article 1 of the Convention. Protection against discrimination. Legislation. For a number of years, the Committee has been noting that the labour legislation reform process was under way and requested the Government to ensure that the new legislation defines and prohibits direct and indirect discrimination on at least all the grounds set out in Article 1(1)(a) of the Convention, and covers all workers and all aspects of employment and occupation. The Committee notes with interest the recent adoption of several legislative provisions on non-discrimination, namely:

-Article 18(1) of the new Constitution of 2015, which provides that every citizen shall be equal before the law, and Article 18(2), which provides that there shall be no discrimination in the application of general laws on the grounds of origin, religion, race, caste, tribe, sex, physical conditions, disability, health conditions, matrimonial status, pregnancy, economic condition, language or geographical region or ideology or any other such grounds;
-the new Labour Act of 2017 (section 180) and the Labour Regulations of 2018 (section 6) which prohibit discrimination on the basis of sex at work, covering all entities both in the formal and informal sectors, but excluding in particular the civil service, as well as the Nepal army, police and other armed forces from their scope of application;
-the new National Civil Code of 2017, which entered into force on 17 August 2018, which provides that there shall be no discrimination in the application of general laws and no person shall be discriminated against in any public and private place on the grounds of origin, religion, colour, caste, race, sex, physical condition, disability, condition of health, marital status, pregnancy, economic condition, language, region, ideological conviction or on similar other grounds (section 18(1) and (2)). Section 18(4) provides that any citizen appointed to a governmental or public office shall be appointed only on the basis of the qualifications determined by law and shall not be discriminated against on the grounds of origin, religion, colour, caste, race, sex, physical condition, disability, condition of health, marital status, pregnancy, economic condition, language, region, ideological conviction or similar other grounds; and
-the Right to Employment Act of 2018, which provides that every citizen shall have the right to employment (section 3) and that, except where special provisions apply by reason of the prevailing law for any particular class or community with respect to the provision of employment to the unemployed, no person shall be discriminated against on the grounds of origin, religion, colour, caste, ethnicity, sex, language, region, ideology or similar other grounds (section 6). The Act provides for a fine of 10,000 Nepalese rupees (NPR) in the case of discrimination made by the employer (sections 25 and 26).

Noting that the grounds of political opinion and national extraction set out in Article 1(1)(a) of the Convention are not expressly covered by the national legislation, which does not specifically refer to direct and indirect discrimination in employment and occupation. Further, the legislation appears in some important respects to grant protection against discrimination only to citizens. In view of the foregoing, the Committee draws the Government’s attention to the fact that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (see the 2012 General Survey on the fundamental Conventions, paragraphs 850–853). The Committee also notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expresses specific concern at the lack of explicit protection against direct and indirect discrimination against women (CEDAW/C/NPL/CO/6, 14 November 2018, paragraph 8(a)). The Committee urges the Government to take all the necessary steps to ensure that its national legislation includes an explicit prohibition of direct and indirect discrimination against all persons on at least all of the grounds enumerated in Article 1(1)(a) of the Convention concerning all stages of the employment process. It asks the Government to provide information on any progress made in that regard, while specifying how the protection of the Convention is ensured to all workers, including those in the informal economy and non-nationals, irrespective of their regular or irregular situation. In the meantime, the Committee asks the Government to provide information on the application in practice of section 180 of the Labour Act of 2017 section 6 of the Labour Regulations of 2018, section 18 of the National Civil Code of 2017 and section 6 of the Right to Employment Act of 2018, including on any relevant administrative or judicial decisions.

Discrimination based on sex. Sexual harassment. The Committee notes with interest the adoption of the Sexual Harassment at the Workplace (Prevention) Act of 2015, which prohibits both quid pro quo and hostile work environment sexual harassment (section 4) and requires employers to disseminate information about and prevent sexual harassment, as well as to set up an internal complaint mechanism. The Act also provides for penalties of six months of imprisonment and/or a fine of NPR50,000 against any person who commits sexual harassment (section 12). The Committee further notes that section 132 of the new Labour Act provides for the termination of the employment of any person who has committed sexual harassment. The Committee however notes that in its 2018 concluding observations, the CEDAW expresses concern that: (i) rates of violence against women are increasing; (ii) girls suffer sexual harassment, corporal punishment and abuse in school, including by teachers; (iii) cases of sexual harassment are under-reported and judicial and law enforcement officers, in particular at the local level, prevent the registration of cases of sexual and gender-based violence; and (iv) the Sexual Harassment at the Workplace (Prevention) Act is insufficiently implemented. The CEDAW specifically recommends that the culture of silence surrounding sexual harassment should be broken; that a confidential and safe complaint mechanism should be established; and that access to justice for victims of sexual harassment in the workplace should be facilitated (CEDAW/C/NPL/CO/6, 14 November 2018, paragraphs 10(d), 20(a), 32(c), 34(c) and 35(c)). Lastly, noting that criminal proceedings require a higher burden of proof, the Committee recalls that the establishment of easily accessible dispute resolution procedures (in addition to criminal proceedings) can make an effective contribution to combating discrimination (see 2012 General Survey, paragraphs 792 and 855). The Committee requests the Government to indicate whether any implementing measures have been adopted since the enactment of the Sexual Harassment at the Workplace (Prevention) Act to combat sexual harassment. The Committee also requests the Government to take steps to address the social stigma attached to this issue for workers, employers and their representative organizations, as well as law enforcement officials. The Committee further requests the Government to report on the number of cases of sexual harassment at work dealt with by internal complaint mechanisms set up at the enterprise level, labour inspectors, the courts or any other competent authority, the sanctions imposed and remedies granted, as well as updated statistical data on the extent of sexual harassment perpetrated against girls and women in education institutions and at the workplace.

Articles 2 and 3. Equality of opportunity and treatment irrespective of social origin. The Committee previously welcomed the adoption of the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act of 2011, which prohibits caste-based discrimination and “untouchability” (sections 3 and 4). The Committee notes that Article 24(4) of the new Constitution provides that there shall be no racial discrimination in the workplace on the ground of “untouchability”. Noting the constitutional recognition of the National Dalit Commission (Articles 255 and 256 of the Constitution), the Committee notes the Government’s statement that no recommendation concerning the employment sector has been made so far by the Commission, but that information on the implementation of the Act of 2011 will be provided at a later stage. The Government adds that, from 2014 to 2016, 1,372 Dalit women and 1,553 Dalit men participated in training programmes conducted by the Vocational and Skill Development Training Centre of the Ministry of Labour and Employment. The Committee however notes that in their 2018 concluding observations, the UN Committee on the Elimination of Racial Discrimination (CERD) and the CEDAW express concern at: (i) the insufficient funding of the National Dalit Commission, which is only operational in Kathmandu; (ii) the insufficient implementation of the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act of 2011; as well as (iii) reports that law enforcement officials are sometimes reluctant to act upon caste-based discrimination (CEDAW/C/NPL/CO/6, 14 November 2018, paragraphs 18(a) and 40(b), and CERD/C/NPL/CO/17–23, 29 May 2018, paragraphs 9 and 11). The CERD also expresses deep concern as to the way in which caste-based occupational specialization obstructs socio-economic mobility and assigns members of certain castes to degrading and/or exploitative occupations (CERD/C/NPL/CO/17–23, 29 May 2018, paragraph 31). Recalling that continuous measures are required to put an end to discrimination in employment and occupation due to real or perceived membership of a certain caste, the Committee urges the Government to take proactive measures to ensure the effective implementation of the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act of 2011, including by raising awareness among the general public, as well as law enforcement officials, of the prohibition of caste-based discrimination in the national legislation, the remedies and procedures available. The Committee also requests the Government to provide information on any measures envisaged or implemented to this end. The Committee further asks the Government to provide information on the activities of the National Dalit Commission, as well as on the number, nature and outcome of any complaints of caste-based discrimination dealt with by labour inspectors, the courts or any other competent authority.

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