Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1(1)(a) and (b) of the Convention. Prohibition of discrimination in employment and occupation. Legislation. The Committee notes the adoption of Act No. 028-2008/AN of 3 May 2008 issuing the Labour Code. It notes that, like the former Labour Code of 2004, section 4 of the new Code prohibits any discrimination in employment or occupation and contains a definition of direct discrimination and indirect discrimination on the basis of the seven criteria listed in Article 1(1)(a) of the Convention. Moreover, the Committee notes with interest that disability and pregnancy have been added to the list of prohibited grounds of discrimination (section 4(1) of the Labour Code), within the meaning of Article 1(1)(b) of the Convention. The Committee requests the Government to supply information on the application of section 4 of the Labour Code, including any administrative or judicial decision concerning discrimination in employment or occupation.

Scope of protection. Exclusions. The Committee notes that section 3 of the Labour Code of 2008 excludes civil servants from the scope of the Labour Code. As regards protection against discrimination for these workers, the Committee notes that Act No. 013/98/AN of 28 April 1998 governing their status, as amended by Act No. 019/2005/AN, does not contain any provisions defining or explicitly prohibiting discrimination on the grounds listed in Article 1(1)(a) of the Convention. The Committee also notes that section 3 of the Code excludes “any worker governed by a specific law” from its scope. Recalling that the protection against discrimination provided for by the Convention extends to all workers in both the private and public sectors, the Committee requests the Government to take the necessary steps to ensure that any discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin regarding access to vocational training or employment and also regarding terms and conditions of employment for civil servants is explicitly prohibited. The Committee also requests the Government to specify the category or categories of workers “governed by a specific law” who are not subject to the provisions of the Labour Code pursuant to section 3 thereof and to indicate the manner in which their protection against discrimination in employment and occupation is ensured.

Sexual harassment. In its previous comments, the Committee noted that section 47 of the former Labour Code of 2004 appeared to cover only quid pro quo sexual harassment and it expressed the hope that the new Labour Code would contain provisions defining and prohibiting not only quid pro quo sexual harassment but also hostile environment sexual harassment. The Committee notes that the Government has not taken the opportunity provided by the adoption of the new Code in 2008 to introduce the concept of hostile environment sexual harassment, since section 37 of the new Labour Code covers only quid pro quo sexual harassment. With reference to its general observation of 2002 on sexual harassment, the Committee recalls that hostile environment sexual harassment may be defined as “conduct that creates an intimidating, hostile or humiliating working environment for the recipient”. The Committee requests the Government to take the necessary steps to amend section 37 of the Labour Code in order to ensure that workers are also protected against hostile environment sexual harassment and to supply information on the measures taken in this regard. The Committee also requests the Government to supply information on any specific measures taken to prevent and eliminate sexual harassment, in all its forms, and also information on any cases of sexual harassment dealt with by the competent authorities.

Equality of opportunity and treatment between men and women. The Committee notes the information concerning the mid-term evaluation, undertaken at the end of December 2008, of the Action Plan for the Advancement of Women 2006–10, in the context of the implementation of the National Policy for the Advancement of Women. While noting that the Government provides detailed information in its report on the activities to be undertaken in order to achieve the six strategic objectives of the National Policy, the Committee observes that the report does not contain any information on the specific measures adopted and implemented for effectively promoting equality of opportunity and treatment between men and women, or on their impact on the situation of men and women in employment. However, the United Nations Committee observes that, according to the report submitted in 2009 by Burkina Faso to the Committee on the Elimination of Discrimination against Women, women are poorly represented in the private sector; in 2005, in all sectors combined, women accounted for 17 per cent and men for 83 per cent of persons regularly declared to the National Social Security Fund (CEDAW/C/BFA/6, 1 October 2009, paragraph 116). The Committee also notes the Government’s indication in the abovementioned report that private sector employers prefer to recruit men and justify that choice by citing their greater availability and their more specialized skills. Furthermore, the statistical data communicated in this report for 2005 show that substantial disparities in favour of men remain in the public service in terms of the number of civil servants and the posts occupied; women represented only 25.4 per cent of civil servants and only 19.7 per cent of senior management (category A). Women are more numerous in middle management because it is at this level that occupations traditionally performed by them are found. In view of the substantial gender disparities in employment and occupation, the Committee requests the Government to supply information on specific measures taken, especially in the context of the Action Plan for the Advancement of Women 2006–10, to increase women’s access to paid employment in the private sector and public service, including to managerial posts, and access to self-employment, especially in rural areas, and to reduce occupational segregation, including through education and vocational training. The Committee also requests the Government to indicate any action taken to combat stereotypes and gender bias regarding the respective roles of men and women in society, including measures aimed at enabling men and women to reconcile work and family responsibilities. The Committee requests the Government to supply statistical data on the situation of women and men in the various sectors of the economy and in the public service and also any available data on the distribution of men and women in the informal economy.

Formulation and implementation of a national policy on equality irrespective of race, colour, religion, political opinion, national extraction or social origin. The Committee notes that the Government’s report does not contain any information in this respect. It recalls that a national policy in conformity with Articles 2 and 3 of the Convention should include, apart from legislative provisions, specific and practical measures to remedy existing inequalities on the basis of all the types of discrimination prohibited by the Convention, for example awareness raising regarding discrimination and equality and proactive measures. The Committee requests the Government to supply information on the specific measures taken to promote equality of opportunity and treatment in respect of employment and occupation, irrespective of race, colour, religion, political opinion, national extraction or social origin.

Special protective measures for women. The Committee notes that section 142 of the Labour Code of 2008 provides that no woman worker may be assigned to work that may harm her reproductive capacity or, in the case of a pregnant woman, harm her health or that of the child. It also notes the adoption on 27 January 2010 of a Decree determining the types of work that are prohibited for pregnant women pursuant to the abovementioned section of the Labour Code. The Committee requests the Government to supply information on the application in practice of section 142 of the Labour Code concerning prohibited work for women, to state whether other implementing decrees have been adopted and to supply a copy of the Decree of 27 January 2010 determining the types of work that are prohibited for pregnant women.

Enforcement. Labour inspection. The Committee requests the Government to supply information on the work of the labour inspectorate with regard to discrimination in employment and occupation, stating the number and nature of cases of discrimination detected during workplace inspections, the penalties imposed and the administrative or legal action taken further to these infringements.