Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Access to employment. With regard to section 3, paragraph 1, of Act No. 16045, which prohibits all forms of discrimination that violate the principle of equality of treatment and opportunity for both sexes, with the exception of cases in which being of a particular sex is an inherent requirement for carrying out the activities involved in a certain job, the Committee notes that the Government has once again reiterated as follows: that no regulations or lists of jobs or occupations to which this exception might apply have been established; that there has been no dialogue with social partners to determine the criteria on the basis of which the fact of being of one particular sex is an inherent requirement for performing a certain activity since the general principle prevails in all cases; that the Labour Directorate has not received any complaints based on this exception; and that no appeals have been lodged with the courts based on this exception. The Committee therefore requests the Government to consider the possibility of repealing the abovementioned exception, so as to ensure that its application does not unjustifiably exclude individuals from the protection afforded by the Convention on the basis of sex.

2. African descendants. With regard to the information requested on the community of African descendants, the Committee notes the Government’s indication that it has not carried out any studies on the impact of Act No. 17677, which punishes incitement to hatred, contempt or violence against one or more persons on grounds of colour, race, national or ethnic origin, or sexual orientation or identity. It also notes, however, that the Secretariat of Human Rights, the Secretariat of Female African Descendants of the National Institute for Women, and the Ministry of Labour and Social Security are currently working on, or planning to begin work on, the promotion of equality in employment and occupation of the community of African descendants. The Committee asks the Government to provide detailed information on the functioning of, and the activities undertaken by, the bodies committed to the elimination of discrimination against African descendants and trusts that the Government’s next report will contain statistical information on the labour situation of the community of African descendants.

3. Pregnancy tests and proof of not being pregnant. The Committee notes the Inter-Union Assembly of Workers – National Convention of Workers’ (PIT-CNT) indication that there is no legislation expressly prohibiting and sanctioning requests for pregnancy tests or proof of not being pregnant as a requirement for access to employment. Moreover, the Committee notes the Administrative Resolution of 26 May 2006 which imposed a fine upon a specific company for violating a number of laws, including Act No. 16045 and the Convention, the reason being that the employment contract indicated that the female worker had declared herself not to be pregnant. The Committee requests the Government to provide information on the measures adopted or envisaged to eliminate this restriction in particular.

4. Code of financial penalties. With reference to the application and impact of the code of financial penalties approved by Decree No. 186/04 which classifies as very serious the actions or omissions implying discrimination in conditions of work and which envisages penalties in the event of such offences, the Committee notes the Government’s indication that this Decree was contested by the employers and that an application for the resolution of the issues had been lodged before the Administrative Disputes Tribunal. The Committee notes, however, that the labour inspectorate continues to apply the provisions in question. The Committee requests the Government to keep it informed of any developments and any solutions found in relation to the application referred to above and to provide information on the cases in which the labour inspectorate has identified offences under the code of financial penalties and the measures taken as a result.

5. Labour inspection. The Committee notes that within the General Labour Inspectorate there is a section which provides advisory services and receives complaints concerning violations of labour standards, including those relating to discrimination, and that these are dealt with by the Legal Inspection Division. The Committee notes that the Legal Inspection Division collaborates in these procedures whenever it is necessary to carry out inspection visits and that an inspection protocol was drawn up this year for cases of complaints of this nature. The Committee requests the Government to provide information on the requests for advice received by the labour inspectorate, the cases dealt with by the Legal Inspection Division and the measures taken as a result relating to the application of the Convention, and also requests it to communicate a copy of the abovementioned inspection protocol.

6. Domestic labour. The Committee notes the draft law on domestic labour which is currently before Parliament and which, according to the PIT-CNT, significantly amends the previous regulation which it considered discriminatory. It also notes the PIT-CNT’s indication that domestic labour is not covered by the Wage Council. The Committee trusts that the Government will take the necessary steps to ensure that this law is adopted by Parliament and that domestic labour is covered by the Wage Council.

7. Sexual harassment. Taking into consideration the PIT-CNT’s observation on the inadequacy of existing legislation to prevent and penalize sexual harassment, the Committee notes with interest the Government’s indication that a draft law has been prepared on the prevention and punishment of sexual harassment, with the assistance of an expert in this field from the ILO, and that it is currently being examined by the Tripartite Commission on Equality of Opportunity and Treatment in Employment. The Committee notes the Government’s indication that various awareness-raising activities have been undertaken in respect of discrimination in the form of sexual harassment and that the General Labour Inspectorate has implemented a summary procedure for complaints relating to sexual harassment. The Committee would be grateful if the Government would keep it informed of the development of the abovementioned draft law and attach a copy of it to its next report. It asks the Government to provide detailed information on the complaints procedure referred to and to continue to provide information on complaints received by the General Labour Inspectorate and on the manner in which they are dealt with.

8. Sex discrimination. The Committee notes the PIT-CNT’s indication that the Decree of 8 May 1950 on work in bakeries prevents women from working overtime and that there are no specific rules on paternity leave in the private sector. The Committee asks the Government to provide information on these issues, and on any measures taken or envisaged to address them.