Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Bahrain (Ratification: 2000)

Other comments on C111

Observation

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The Committee notes the report of the direct contacts mission as well as the observations made by the General Federation of Bahrain Trade Unions (GFBTU) and the International Trade Union Confederation (ITUC), received respectively on 30 August and 1 September 2018.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussion in the Conference Committee on the Application of Standards (CAS) of the International Labour Conference, at its 107th Session (June 2018), on the application of the Convention, and the conclusions adopted. The conclusions of the CAS called upon the Government of Bahrain: (i) to provide information on the measures taken to implement the commitments contained in the Tripartite Agreements of 2012 and 2014 signed under the auspices of the ILO, concerning the resolution of cases involving suspension, dismissal and other sanctions imposed on trade union members and leaders, following the events of 2011, and to ensure that all the outstanding cases of reinstatement and compensation for the cases falling under the scope of the Tripartite Agreements are resolved; (ii) to ensure that its legal framework is in conformity with the requirements of the Convention, in particular with regard to the definition and formal prohibition of direct and indirect discrimination across all seven grounds in the Convention, and of sexual harassment; (iii) to ensure that migrant workers as well as domestic workers are included in the protection of anti-discrimination law; and (iv) to repeal any provisions that constitute an obstacle to the recruitment and employment of women. The Committee notes that during the discussion held in June 2018, the Government accepted the CAS request (made in June 2017) that a direct contacts mission take place. This took place between 15 and 19 September 2018. Finally the Committee notes that following the visit of the direct contacts mission, the Government sent a communication to the ILO providing updated information concerning the implementation of the Tripartite Agreements of 2012 and 2014 and communicating copies of draft amendments and regulations submitted to Cabinet, in accordance with the direct contacts mission’s request.

I. Measures taken to implement the commitments contained in the Tripartite Agreements of 2012 and 2014

Article 1 of the Convention. Discrimination on the basis of political opinion. The Committee recalls that, at the 100th Session (June 2011) of the International Labour Conference, a complaint under article 26 of the ILO Constitution concerning the non-observance by Bahrain of the Convention was filed by some Workers’ delegates at the Conference. According to the complaint, in February 2011, suspensions and various other sanctions, including dismissals, were imposed on trade union members and leaders, as a result of peaceful demonstrations demanding economic and social changes and expressing support for ongoing democratization and reform. The complaint alleged that these dismissals (approximately 4,600) were on the grounds of the workers’ opinions, beliefs and trade union affiliation. At its 319th Session (October 2013), the Governing Body welcomed a Tripartite Agreement, reached in March 2012 by the Government, the GFBTU and the Bahrain Chamber of Commerce and Industry (BCCI). At its 320th Session (March 2014), the Governing Body welcomed the adoption of a Supplementary Tripartite Agreement signed in March 2014 on the final settlement of the dismissed workers. Consequently, the complaint under article 26 of the ILO Constitution was closed and the Governing Body invited this Committee to follow up on the implementation of the Tripartite Agreements, in particular with regard to the 165 outstanding dismissal cases (according to the list annexed to the Supplementary Tripartite Agreement of 2014) and to examine the application of the Convention by the Government.

In its 2017 report submitted pursuant to article 22 of the ILO Constitution, the Government explained that all the cases concerning workers dismissed for reasons relating to the events of February 2011 had been resolved on the basis of cooperation at the national level between the social partners. However, the Committee noted that, according to ITUC observations, 64 cases of dismissal relating to the events of February 2011 were still outstanding. Noting that the GFBTU, which is a party to the Tripartite Agreements, did not send its observations confirming that there had been full implementation of the above-mentioned Agreements, the Committee had asked the Government to provide evidence that the cases of the 165 dismissed workers mentioned by name in the Annex to the Tripartite Agreement of March 2014 had been resolved to the respective satisfaction of the parties.

In its latest report the Government stresses the efforts exerted by the Tripartite Committee set up to settle the cases of workers who had been dismissed in the wake of the 2011 events. The Government indicates that, only nine cases (out of the initial 4,600) remain outstanding but that they are about to be settled. The Government provides a detailed account of the steps taken in this regard in cooperation with the GFBTU. The Committee notes that this information was also communicated to the direct contacts mission during its meeting with officials of the Ministry of Labour and Social Development (MLSD). As for the “certificate of rehabilitation”, mentioned in the Committee’s previous comment, the Government indicates that it is not a precondition for employment nor necessary to benefit from the Government’s services in training and placement but that it is a document delivered by the courts, upon request, to workers who have been convicted by the courts, served their sentence and who have expressed the wish to apply once again for a job in the public sector.

The Committee notes that in their observations both the GFBTU and the ITUC maintain that there are more than the nine outstanding cases mentioned by the Government. They argue that of the 64 cases which were still pending in 2017, at the date of submitting their observations and at the meeting with the direct contacts mission (September 2018), 55 cases remain outstanding. Both organizations draw attention to the fact that, apart from the alleged 55 outstanding cases, there remain a number of other outstanding issues regarding the implementation of the Tripartite Agreements, which relate to: (i) the fact that, although according to the Tripartite Agreements, dismissed workers were entitled to be reinstated in sectors and with job descriptions similar to those in which they had worked prior to their dismissals, in practice this undertaking is not always respected. The GFBTU and the ITUC give concrete examples, such as the case of a company driver who was reinstated as a forklift operator, and a trade union leader formerly employed as an engineer now working in the maintenance service; (ii) cases that could not be considered as a proper implementation of the Tripartite Agreements, for example some workers have been pressured to accept early retirement or to become self-employed, while others were arbitrarily dismissed shortly after being reinstated; (iii) cases where workers have been dismissed because they were facing criminal charges (contrary to Bahraini law, where only a guilty verdict following a criminal trial could justify termination of employment) and were still waiting to be reinstated after having been found not guilty; and (iv) a lack of proper compensation for the loss of income incurred since dismissal and the treatment of social security contributions for the period between dismissal and reinstatement or the acceptance of a financial package in lieu of reinstatement (with the exception of the cases of BCCI and the University of Bahrain, where dismissed workers were fully compensated). Finally, both organizations indicate that, following the signing of the Tripartite Agreement of 2014, 17 new cases of dismissals have occurred, based on the same grounds as of 2011 (political opinion, belief and trade union affiliation).

The Committee notes that during its last meeting with the direct contacts mission, the GFBTU indicated a willingness to acknowledge that some of the 55 cases were close to being resolved. However, the GFBTU emphasized that it could only undertake a proper assessment of some of these cases once a three-month period had elapsed after reinstatement and the workers were able to confirm that they were satisfied with the arrangements made. As to the nine cases that had been mentioned by the MLSD as the only remaining cases, information regarding the most recent MLSD efforts for the settlement of five of these cases is noted. The Committee further notes that the GFBTU indicated a willingness to further discuss with the MLSD the list of 55 cases, if effective efforts were made to resolve the remaining four cases, out of the nine acknowledged by the MLSD to be outstanding, bearing in mind that these four cases were former employees of Government departments who had not been convicted of any crime. Further, the GFBTU emphasized that, for those workers whose cases had not been resolved, the consequences for them and their families were severe (no regular income since 2011 and sometimes no possibility of finding new employment as they are “blacklisted”). The GFBTU expressed the hope that the outstanding matters could be effectively settled by January 2019. From the information contained in the direct contacts mission report, the Committee notes that Bahrain’s tripartite constituents have made strenuous efforts to resolve the remaining cases listed in the Tripartite Agreements of 2012 and 2014 and that consequently very few cases remain outstanding. However, it notes that the number of outstanding cases is still the subject of dispute between the Government (nine) and the GFBTU (55) and that the direct contacts mission acknowledged that each and every case that remains outstanding is important because of the impact on the workers affected and on their families. It also notes that, both the Government and the GFBTU have expressed their commitment to coming to an agreement on the number of outstanding cases and to resolving them. Welcoming this commitment, the Committee calls upon both parties to strengthen their efforts to agree upon the number of outstanding cases and to resolve them in accordance with the Tripartite Agreements, including with regard to financial compensation and the provision of social insurance coverage for the period of interrupted service. It urges the Government and the GFBTU to address the outstanding cases in a constructive, pragmatic and flexible way without delay in order to move forward and engage with other pressing issues for the tripartite constituents. Noting that the Tripartite Agreements of 2012 and 2014 contain an undertaking from the tripartite constituents that they will “promote social and institutional dialogue through strengthening the existing tripartite mechanisms in accordance with national laws and regulations as well as with international principles and standards” in order “to strengthen productive relations and advance social dialogue”, the Committee wishes to point out that the Tripartite Agreements provide an opportunity not only to resolve the individual cases but also to develop constructive social dialogue, which has been hindered since 2011.

In its previous comments, the Committee had asked the Government to provide its comments on the allegations of Education International (EI) and the Bahrain Teachers Association (BTA) that, following the dismissal of a number of teachers involved in the peaceful demonstrations during the 2011 events, some 9,000 expatriates had been hired from Arab States by the Ministry of Education and that a two-tier teacher workforce has been established with expatriate teachers benefiting from better conditions than nationals. The Committee notes that according to the Government, this information is erroneous as the Ministry of Education (MoE) has reinstated the small number of dismissed workers. Furthermore, the Government indicates that the MoE continues to advertise its vacancies, carry out the necessary tests and interviews and employ Bahraini citizens as a priority, in conformity with the national policy of “indigenization” of the public sector in general and of educational jobs in particular (Bahrain Economic Vision 2030). Expatriate employment is limited to specializations in which national graduates are lacking and each year the Government earmarks a large amount of its budget for training its national employees to progressively replace expatriate teachers. As a result, in the past years, all the teachers benefiting from promotions and grades are Bahraini citizens; consequently, 100 per cent of the MoE upper and middle management, directors and high officials are nationals of Bahrain. On this point, the Government also draws the Committee’s attention to the fact that the BTA was dissolved in 2011 and it questions the credibility of any information provided by the Association. In addition, the Committee notes the information given to the direct contacts mission during its meeting with officials of the MoE that, out of a total of 25,000 employees (in the public sector), no more than 70 teachers were dismissed and to date all of those teachers have been reinstated with full compensation (back pay and social security coverage from the date of dismissal). There have not been reinstatements in four cases because the persons concerned had criminal records and responsibility for such cases lies with the Civil Service Bureau (CSB). During its meeting with the direct contacts mission, the CSB confirmed that the 180 teachers who had been dismissed in 2011 had all been reinstated with full benefits; the four outstanding dismissal cases were not linked to the 2011 events but related to other grounds (mainly misconduct), and referred the direct contacts mission to section 25.1(g) of the Civil Service Law (Reasons for termination service) which stipulates that: “An Employee’s service shall be terminated for the following reasons: … Dismissal from service by a disciplinary action or in accordance with a judicial ruling.” The Committee notes that, during its meeting with the GFBTU, the direct contacts mission was told that 15 teachers who were members of the BTA had been dismissed following the events of 2011, and five of them, including the Vice-President, had still not been reinstated nor had they been provided with any information on the progress of their cases and consequently were unable to gain employment in private schools due to the lack of clearance from the MoE. In addition, the direct contacts mission was informed that dismissed teachers were frequently replaced by teachers who had recently been naturalized as Bahraini citizens. The Committee therefore asks the Government to provide its comments on these allegations, including whether the difficulties encountered by the dismissed workers are linked to the failure to issue a “certificate of rehabilitation”.

With regard to discrimination based on political opinion, the Committee notes the concluding observations of the United Nations Human Rights Committee (HRC) on the initial report of Bahrain on the application of the International Covenant on Civil and Political Rights (CCPR). In these concluding observations, while acknowledging the State Party’s need to adopt measures to combat acts of terrorism, the HRC expressed concerns that the Act on the Protection of Society from Acts of Terrorism (Act No. 58/2006) provides for an overly broad definition of terrorism that is susceptible to wider interpretation which may result in violations of the right to freedom of expression and assembly. It notes that the HRC is concerned at reports of the extensive use of the Act outside the scope of terrorism, including against human rights defenders and political activists (CCPR/C/BHR/CO/1, 26 July 2018, paragraph 28). Noting that the same concerns were mentioned by the GFBTU during its meetings with the direct contacts mission, and that the ITUC indicates in its observation that the CSB recently published a circular which anticipates disciplinary measures, including dismissal, for any worker “abusing the social media” the Committee recalls that the protection against discrimination on the basis of political opinion under the Convention implies protection in respect of the activities relating to the expression or demonstration of views in opposition to established political principles and opinions. It also covers discrimination based on political affiliation. The protection of political opinion applies to opinions which are either expressed or demonstrated, but does not apply where violent methods are used (see 2012 General Survey on the fundamental Conventions, paragraph 805). The Committee asks the Government to ensure that the application in practice of Act No. 58/2006 does not infringe the right to be protected from discrimination on the ground of political opinion and to keep it informed of any developments in this respect. It also asks the Government to specify the nature of the offence of “social media abuse” mentioned by the ITUC to ensure that political opinion does not fall under the purview of the new circular.

II. Measures to ensure that Bahrain’s legal framework is in compliance with the requirements of the Convention

The Committee recalls that, since the ratification of the Convention in 2000, it has been asking the Government to implement legislative reforms.

The Committee also notes that following the direct contacts mission, the Government sent to the Head of the direct contacts mission and the ILO drafts of proposed amendments directed at ensuring compliance with the Convention. These will be reviewed below under the relevant Articles of the Convention.

Article 1(1)(a) and (3). Grounds of discrimination and aspects of employment and occupation. Labour Law in the Private Sector. The Committee recalls that in its previous comments it had noted that the Labour Law in the Private Sector of 2012 (Law No. 36/2012) does not apply to “domestic servants and persons regarded as such, including agricultural workers, security house guards, nannies, drivers and cooks” performing work for the employer or the employer’s family members (section 2(b)). It had stressed that sections 39 (discrimination in wages) and 104 (termination considered to be discriminatory) of the Labour Law in the Private Sector do not include race, colour (only mentioned in section 39), political opinion, national extraction and social origin in the list of prohibited grounds of discrimination. Consequently, it had reiterated its request to the Government to take the necessary steps to include in the Labour Law in the private sector a definition of discrimination as well as a prohibition of direct and indirect discrimination that covers all workers, without distinction whatsoever, with respect to all grounds provided for in the Convention, including colour; with respect to all aspects of employment, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, and to provide information on any developments in this regard. The Committee also notes the CAS’s conclusions referred to above.

The Committee notes that the Government reiterates its statement that no complaints on discrimination in employment or occupation against nationals or expatriates based on religion, ethnicity, colour, belief or affiliation were filed and that the legal framework in place (Constitution, Labour Law in the Private Sector, Civil Service Law, Penal Code) provides constitutional safeguards directed at achieving justice, equality and non-discrimination. Nevertheless, in 2017, the Government decided to address the CEACR and CAS’s recommendations, commenced a review of the Labour Law and has drafted proposed amendments for presenting to the National Assembly. The Committee notes that under the terms of the proposed amendments, if enacted, a new section – section 2 bis – will be incorporated into the Labour Law for the Private Sector, as follows: “Discrimination on the grounds of sex, origin, language, religion or belief among the workers who are prescribed by the provisions of this law is hereby prohibited”; and the current section 185 will be slightly modified to refer to section 2 bis as follows: “A penalty of a minimum fine of 200 dinars [approximately US$530] and a maximum of 500 dinars [US$1,326] shall be imposed on any employer or his representative who violates any provisions specified in section 2 bis.” The Committee notes that these two new provisions will introduce protection against discrimination in employment for domestic workers and the like. However, it also notes that these amendments fall short of the legislative reforms expected. As amended, the Labour Law in the Private Sector omits: (i) a comprehensive definition of discrimination; (ii) a prohibition of direct and indirect discrimination; (iii) protection against discrimination in employment and occupation based on all the seven grounds provided for in the Convention (including race, colour, political opinion, national extraction and social origin); and (iv) protection extending to all aspects of employment and particular occupation (including access to vocational training, employment and particular occupations and terms and conditions of employment). It notes that the newly drafted section 185 specifies that sanctions are available when an employer or his/her representative has subjected a worker to discrimination, but not when a worker is subject to discrimination by a co-worker; and that the draft is silent as to the remedies available to the victim.

Public service. The Committee recalls its previous comment, that public sector workers are covered by Civil Service Instruction No. 16/2016 which only prohibits discrimination based on gender, ethnicity, age or religion and its request to the Government that it take the necessary measures to ensure that public officials enjoy adequate protection in practice against direct and indirect discrimination in employment and occupation, with respect to all grounds provided for in the Convention. The Committee notes with concern that the Government’s report is silent on this point and that the proposed amendments communicated to the ILO on 11 October 2018 are limited to the Labour Law in the Private Sector and do not concern the Civil Service Instruction No. 16/2016 which is also not in conformity with the Convention. The Committee wishes to reiterate once again that a clear and comprehensive definition of discrimination in employment and occupation is critical in identifying and addressing the many manifestations in which it may occur (see 2012 General Survey on the fundamental Conventions, paragraph 743). It also wishes to stress that the lack of complaints is not an indicator of the absence of discrimination in practice. It most likely reflects the lack of an appropriate legal framework, a lack of awareness of rights, a lack of confidence in, or the absence of, practical access to procedures, or fear of reprisals. In that regard, the Committee notes that in its findings, the direct contacts mission found that there is low-level awareness as to the procedure for enforcing the prohibitions on discrimination and as to the remedies available. In addition, it notes that in its concluding observations on the initial report of Bahrain dated 26 July 2018, the HRC regretted the lack of comprehensive anti-discrimination legislation covering all the grounds prohibited under the CCPR and expressed concern about the lack of information on effective remedies for victims of discrimination (CCPR/C/BHR/CO/1, paragraph 14). Consequently, the Committee urges the Government to amend both the Labour Law and the Civil Service Law (Civil Service Instruction No. 16/2016 and Legislative Decree No. 48 of 2010) to incorporate a comprehensive definition of all forms of discrimination in accordance with the Convention and to accept the direct contacts mission’s recommendations that the current legal reforms should ensure that both the Labour Law and the Civil Service Law: (i) contain a comprehensive definition of discrimination which should include direct and indirect discrimination and cover the seven grounds listed in the Convention; (ii) cover all categories of workers, including migrant workers, since the Convention is not limited in its scope as regards individuals or branches of activity; (iii) protect against discrimination in all forms of employment and occupation including in access to vocational training, employment and particular occupations and terms of conditions; and (iv) specify the remedies available for victims of discrimination.

Discrimination based on sex. Sexual harassment. The Committee recalls that it had referred to the need to define and prohibit, expressly, sexual harassment in employment and occupation encompassing both: (i) quid pro quo: any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job; or (ii) hostile work environment: conduct that creates an intimidating, hostile or humiliating working environment for the recipient. It notes that in its 2018 conclusions, the CAS also called upon the Government to ensure that sexual harassment is explicitly prohibited in the civil or labour law and that the necessary steps to introduce preventive measures are taken. The Committee notes that, in an effort to ensure full compliance with the Convention in that regard, the Government asked the ILO for technical assistance on 23 July 2018 and the Office provided the MLSD with such assistance on 13 August 2018. The Committee notes that one of the amendments submitted to the ILO after the direct contacts mission addresses sexual harassment at work. Section 192 bis states that: “A sentence of imprisonment of a maximum of one year or a maximum fine of 100 dinars [approximately $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 [$1,326] and a maximum fine of 1,000 dinars [$2,653] shall be imposed, whenever such a crime is committed by the employer or by his representative.” The Committee notes that although this new provision formally prohibits sexual harassment in the labour legislation (in addition to the Penal Code) and prescribes the sanctions available in the case of serious misconduct, it does not include a clear definition of sexual harassment and it only addresses cases where a worker is subject to sexual harassment from a co-worker and not when the perpetrator is a representative of the employer or a client. Once again, the Committee emphasizes that without a clear definition of sexual harassment in employment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment, both quid pro quo and hostile working environment sexual harassment (see 2012 General Survey, paragraph 791). Recalling once again that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, the Committee once again urges the Government to take steps to incorporate a comprehensive definition of sexual harassment, both in the Labour Law and the Civil Service Law, and to provide for access to effective remedies. With a view to assessing the dissuasive nature of the sanctions in practice, the Committee asks the Government to provide information on the relationship between the level of fines and the average salary. It also asks the Government to take practical steps to prevent and address sexual harassment in employment and occupation, such as for example, launching awareness-raising campaigns on the subject, encouraging management training on sex-based harassment prevention, or inviting employers to establish formal policies and procedures to deal with sexual harassment, and to provide detailed information in this regard.

Article 2. Equality of opportunity and treatment between women and men. In its previous comments, the Committee had noted the detailed information provided by the Government on steps taken to promote the principle of equal opportunity between men and women in employment and occupation and had asked the Government to provide information on the impact of each of these steps in increasing the number of women in leadership positions and their situation in the labour market, in particular in areas traditionally dominated by men, and updated statistical information on the participation of men and women in the labour market, disaggregated by sector, occupational category and position in both the public and private sectors, and the number of women and men respectively benefiting from vocational training. The Committee notes that the information provided by the Government in this regard does not reply to its request for information on the practical impact of the steps taken by it but merely reiterates the information and statistics communicated in the Government’s previous report. In this regard, the Committee notes the information collected by the direct contacts mission during its meetings in particular with the MoE and the Supreme Council for Women which pointed out the world ranking of the Bahraini education system, the fact that Bahrain has the highest female literacy rate in the Arabian Peninsula (97 per cent of girls are enrolled in primary school and 91 per cent attend secondary school) and one of the highest university gender parity indexes in the region. The Committee notes the outcome of the World Economic Forum (WEF) Global Gender Gap Index (which measures the relative gaps between women and men across four key areas: health, education, economy and politics) which indicates that, in 2015, Bahrain was the Middle East and North Africa region’s most improved country with respect to the Economic Participation [of Women] and Opportunity Sub-Index. It notes too that in its 2017 Report, the WEF ranked Bahrain the region’s best-performing country (along with Tunisia and the United Arab Emirates). The Committee further notes the Government’s Fourth Periodic report (CEDAW/C/BHR/4) submitted by Bahrain in March 2018 to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) and the detailed account of the measures taken by the country to ensure equality of opportunity and treatment in employment of women. The Committee notes that, although Bahraini women have made big strides and are well qualified, it is still not easy for them to secure access to senior positions in the private sector. Women comprise only 39 per cent of the total workforce and are mostly concentrated in the entry and middle-level management. In this respect, the Committee also notes the concerns of the HRC about the persistence of patriarchal stereotypes regarding the role of women and men in the family and in society and the fact that women are under-represented in political and public life, in particular in decision-making, despite the measures taken to promote gender equality (paragraph 20). The Committee asks the Government to provide information on any proactive measures taken or envisaged to address the underlying causes and de facto inequalities resulting from discrimination deeply entrenched in traditional and societal values. This should include for example information on any special training and coaching programmes for women employees to develop the skills necessary to access senior positions; measures aimed at reconciling work and family responsibilities and avoiding the reinforcement of stereotypes regarding the role of women and men in society and in the family by extending to men measures currently only available to women (for example, part-time work, unpaid leave to look after a child or a dependent relative, paid leave in the event of the death of the husband of a women worker). Recalling that the effective application of the Convention is an ongoing process requiring a continual cycle of assessment, action, monitoring, further assessment and adjustment, including to address new issues and difficulties, the Committee reiterates its request for information on the impact of all the measures and initiatives adopted in order to increase the number of women in leadership positions and their situation in the labour market, in particular in areas traditionally dominated by men.

Article 3(c). Migrant workers. The Committee recalls that it had asked the Government to provide its comments on the ITUC’s allegations concerning the newly introduced “Flexi scheme” and the kafala or sponsorship system and reiterated its previous request to the Government to provide information on the specific measures adopted to ensure effective protection of all migrant workers, including migrant domestic workers, against discrimination based on all the grounds set out in the Convention. The Committee further asked the Government to ensure that any rules adopted to regulate the rights of migrant workers to change employers do not impose conditions or limitations that could increase the dependency of migrant workers on their employers, and thus increase their vulnerability to abuse and discriminatory practice. It also asked the Government to provide information on the nature and number of cases, disaggregated by sex, occupation and country of origin, where the employer or the Labour Market Regulatory Authority (LMRA) had not approved the transfer of an employee to another employer and on what basis.

The Committee notes the Government’s response that the legal framework provides legal protection to migrant workers with respect to the regulation of labour relations and ensures the rights of all parties, including protection against discrimination in employment and occupation. The Government states that the competent bodies make great efforts to monitor the effective application of the law and to provide support services specifically designed to protect migrant workers, including: (i) mechanisms for filing individual complaints to the MLSD in order to reach amicable settlements; (ii) arrangements allowing for direct contact with the LMRA for migrant workers in several languages; (iii) publication of awareness-raising materials in 14 different languages in cooperation with embassies; (iv) providing migrant workers with the right to transfer from an employer to another, without the consent of the current employer (25,000 approvals in 2017); (v) the introduction of a flexible work permit system (Flexi) from mid-July 2017; (vi) access to an unemployment insurance scheme; (vii) a right of representation in trade unions and federations; (viii) distribution of SIM cards free of charge to keep workers informed in their native language of any developments concerning their work permits and legal status; (ix) introduction of a “National Referral System for Victims of Trafficking in Persons”; (x) creation of a shelter to support and protect migrant workers in difficult situations; and (xi) periodic meetings with embassies of the countries of origin of migrant workers; etc. As for raising the level of awareness of migrant workers as to their rights, the Government recalls that it is not solely its responsibility to do so but also that of embassies representing the countries of origin, trade unions and civil society organizations related to foreign communities, such as cultural and social clubs. Regarding the ITUC statement that the LMRA continues to allow employers to include in workers’ employment contracts a limitation on the right to transfer to another employer for a specified period, the Government states that a worker’s freedom to transfer to another employer has become a right and that the LMRA does not take into account any conditions set out in an employment contract which limit a worker’s right to transfer to another employer. As for cases where a migrant worker has been subject to abusive practices by his/her employer, he/she can request a transfer without having to observe the fixed conditions and legal deadlines. In addition, the Government points out that to date no such cases have been reported to the LMRA. In reply to the ITUC reference to the kafala or sponsorship system or to the nature of the contractual relationship between a migrant worker and an employer, the Government emphasizes that the question of linking the work permit to a specific employer is a regulatory question and is an on-going practice in numerous countries in the world. The Government considers that it is not related to discrimination nor is it in contravention of the principles enshrined in the Convention. Further, asking that the migrant workers provide documents which attest to their identity such as a passport or any other document is a necessary procedural step. A migrant worker who does not have a passport for any reason may remedy this through the embassy of his/her country of origin. The Government indicates that migrant workers are also permitted to obtain theoretical and practical training in accordance with employers’ needs. With respect to the Committee’s request that the Government provide information on the nature and number of cases in which request for a transfer to another employer is refused and the basis for this refusal, the Government indicates that the electronic system, which registers transfer requests, does not accept the registration of requests which do not meet the conditions and rules specified in the law. The Government recalls that in addition to the formal mechanisms for the filing of complaints (labour inspection or courts), migrant workers can resort to their embassies, trade unions, and civil society organizations such as, for example, the National Committee for Human Rights. The Government also states that the MLSD pays great attention to training labour inspectors and is currently examining the possibility of establishing a unit specialized in discrimination. With regard to the introduction of a pilot scheme for a Flexi work permit by which migrant workers are allowed to work without a sponsor (subject to fees), the Committee notes the detailed justification given to the direct contacts mission by the Chief Executive Officer of the LMRA according to which the Flexi permit aims to respond to the economic changes in the country (and worldwide) and the ever-increasing demand for casual, part-time, and seasonal workers. This pilot scheme is an attempt to move away from the sponsorship system and the periodic amnesties which have not resolved the problem of migrant workers whose status is irregular. In introducing the Flexi permit, the LMRA is endeavouring to tackle the problem of undocumented workers differently. According to the LMRA, undocumented workers often work on their own account or as self-employed workers and thus compete with workers whose status is regular and with small businesses, since they constitute a cheap and flexible workforce. The Government indicates that under this new scheme, a migrant worker who has a Flexi work permit is a worker who is employed in the labour market, and who is subject to all laws which regulate the relationship between an employer and a worker such as the Labour Law in the Private Sector. This new system allows a migrant worker working in unfair conditions to make an independent application for a personal permit enabling him or her to work without being bound to a particular employer, in accordance with the rules, and thus avoid exploitation. A migrant worker is free to select registration within the Flexi work permit system or the normal work permit, while benefiting from the freedom of transferring to another employer.

The Committee notes the observations of the GFBTU and the ITUC regarding the situation of migrant workers in Bahrain, as well as the information provided by the Migrant Workers Protection Society (MWPS) to the direct contacts mission. The ITUC recalls that migrant workers account for about 77 per cent of the workforce in Bahrain and they are mostly in low-skill, low-wage jobs in construction, trade, manufacturing and domestic work. They are excluded from a number of provisions of the labour and social protection laws and as a result the GFBTU and the ITUC allege that migrant workers: (i) are denied decent working conditions; (ii) work in unsafe environments; (iii) work excessively long hours (up to 19 hours a day with minimal breaks and no days off); (iv) are paid extremely low wages (some employers pay wages averaging 70 dinar ($186) per month and often go as low as 50 dinars ($92), which are often unpaid for months); and (v) are excluded from social security benefits, and are only entitled to insurance against work injuries. The situation of domestic workers and particularly women migrant workers is aggravated by the exclusion of private houses from labour inspection. According to the ITUC, from April to July 2018, the number of foreign workers in Bahrain committing suicide increased dramatically. With regard to the Flexi permit scheme, the information provided by the GFBTU, the ITUC and the MWPS indicates that although the scheme was set up initially to help migrant workers regularize their residence status, in practice most of them are excluded from the scheme since: (i) skilled workers, workers who escaped abusive employers, domestic and agricultural workers are not eligible; (ii) its cost is prohibitive (total cost for two years is 1,169 dinars or $3,125 while most of them earn less than 200 dinars or $535 per month); and (iii) one of the conditions is to be in possession of a valid passport, a condition that most of the migrant workers in an irregular situation cannot fulfil since their passports will have been confiscated by their employer. In light of the above, the ITUC states that the real objective of the Flexi work permit scheme is to lower the cost of hiring migrant workers and divert money from the free visa black market to the Government rather than regularizing migrant workers in an irregular situation. The ITUC also stresses that, although the Government states that a migrant worker working under this scheme will still enjoy all the benefits and rights provided by the Labour Law in the Private Sector, it is still not clear which law covers the employment contracts of Flexi permit workers and how this impacts on the labour protections afforded to them. The GFBTU adds that the “Wage improvement protection system” (which requires employers to transfer salaries of employees to a bank) launched by the Government to protect private sector workers may benefit construction workers and other private sector workers but it will not solve the problem of vulnerability faced by domestic workers, particularly housemaids who are not familiar with the bank system and electronic transfers, a statement which was supported by the MWPS. As regard the adoption of 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, this is expected to help guarantee the rights of migrant domestic workers. Employers must now state in detail and in writing, among other things, the nature of the job, the working hours and weekly day off and other conditions of work (accommodation offered, salary, number and ages of household members, etc.). The MWPS explained to the direct contacts mission, however, that in practice this contract is bipartite, between the employment agency and the employer, given that the majority of migrant workers (in particular domestic workers) are illiterate. With regard to the kafala or sponsorship system, both the ITUC and the GFBTU point out that, although the Government has repeatedly stated that migrant workers in Bahrain are not subject to the kafala system and may change employment without the permission of their sponsor, in practice the LMRA continues to allow employers to include in their employment contracts a provision limiting the circumstances in which approval of a transfer to another employer will be granted, in particular by prohibiting transfer within the first 12 months of employment.

The Committee takes note of the steps taken by the Government to ensure better protection for migrant workers in general and domestic workers in particular. However, it regrets that the proposed amendment communicated by the Government on October 2018, aimed at explicitly extending the full protection of the Convention to migrant workers falls short of the Committee’s and CAS’ expectations since the protection against discrimination in employment and occupation afforded to domestic workers and migrant workers does not extend to all the grounds formally prohibited by the Convention. The Committee therefore urges the Government to ensure that the text finally adopted covers all the points listed in its comments above under Articles 1(1)(a) and 3 of the Convention. The Committee reminds the Government of the possibility of availing itself of the technical assistance of the ILO in this regard.

As regards the kafala system, the Committee considers that any move towards de-linking migrant workers from the control of a single sponsor is to be welcomed. However, the information provided to the direct contacts mission and the Committee suggests that the Flexi permit scheme is neither meeting the Government’s expectations nor meaningfully improving mobility for migrant workers as a whole. Noting that the Flexi permit system is a pilot scheme which will be reviewed after a certain period, the Committee urges the Government to address these issues and consider reducing the fees and relaxing the eligibility criteria to enable more migrants to apply for a Flexi permit. As to the remaining aspects of the kafala system limiting migrant workers’ freedom of movement, the Committee asks the Government to prohibit restrictions on a worker’s freedom to change employer, including before expiry of a 12-month period from the date of commencement of the contract and to provide information on any progress made in this regard. In the meantime, the Committee asks the Government to provide information on the implementation of the Flexi permit scheme and its impact on reducing migrant workers’ vulnerability to exploitation. Noting that the ITUC and the GFBTU are questioning the efficiency of the Wage Improvement Protection System and the Tripartite Domestic Worker Contract, the Committee asks the Government to provide information on the implementation in practice of these two measures and to periodically evaluate them in order to monitor their impact on reducing migrant workers’ vulnerability.

Article 5. Special measures of protection. The Committee wishes to recall that protective measures for women may be broadly categorized into those aimed at protecting maternity, in the strict sense, which come within the scope of Article 5, and those aimed at protecting women generally because of their sex or gender based on stereotypical perceptions about their capabilities and appropriate role in society which are contrary to the Convention and constitute obstacles to the recruitment and employment of women (see 2012 General Survey on the fundamental Conventions, paragraph 839). The Committee recalls that it considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Therefore any restrictions on women’s access to work based on health and safety considerations must be justified and based on scientific evidence and, when in place, must be periodically reviewed in the light of technological developments and scientific progress, to determine whether they are still necessary for protection purposes. The Committee also emphasizes the need to adopt measures and put in place facilities to enable workers with family responsibilities, in particular women who continue to bear the unequal burden of family responsibilities, to reconcile work and family responsibilities. Consequently, in its previous comments, the Committee had urged the Government to take steps to ensure that protective measures applicable to women are limited to maternity protection in the strict sense, and to repeal any provisions that constitute an obstacle to the recruitment and employment of women, such as Ministerial Order No. 16 of 2013 (regarding occupations in which, and the circumstances under which, employing women at night is prohibited) and section 1 of Order No. 32 of 2013 (which prohibits women’s employment in certain sectors and occupations) and asked the Government to provide information on the specific steps taken or envisaged in this regard. The Committee welcomes the proposed amendments communicated by the Government in response to the Committee’s request. The draft amendment defines the work in which pregnant and breastfeeding women may not be employed. However, the Committee is of the view that the draft amendment is overgeneralized both for the areas of work and the exposure agents (for example in section 1, the text refers to excessive heat but does not precisely define “excessive”). The draft text also omits certain hazards, for example non-ionizing radiation and UV radiation, among others. Overall, the draft also does not take into account the principles of prevention and protection as provided in ILO instruments on occupational safety and health. In light of the above, while welcoming the decision of the Government to propose amendments to the Ministerial Orders mentioned above, the Committee urges the Government to avail itself of ILO technical assistance in this regard, before adopting the draft amendment, since the draft is inadequate. In the meantime, it asks the Government to review its approach regarding restrictions on women’s employment in light of the above principles to ensure that any protective measures taken are strictly limited to maternity protection, in the strict sense, or based on occupational safety and health risk assessments and do not constitute obstacles to the employment of women, in particular to their access to posts with career prospects and responsibilities. The Committee asks the Government to provide information on any development in this regard.

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