Repetition

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In response to the Committee’s previous requests, the Government indicates that few claims concerning discrimination based on sex in the workplace were brought before the Labour and Social Services Inspection and explains that victims are reluctant to report discrimination and that, where cases are reported, there are difficulties to verify the reported facts or circumstances. In this regard, the Committee notes that, in the National Review on the Implementation of the Beijing Platform for Action (Beijing+25), the Government recalls a survey conducted by the People’s Advocate in 2017, according to which further measures are necessary in relation to the very limited number of cases of sexual harassment in jurisprudence, which is due to factors related to education and social awareness, the position of women in society, the lack of knowledge and awareness, and the lack of trust in institutions. The Committee also notes the Government’s indication that the Minister of Finance and Economy has started the procedure for the ratification of the ILO Violence and Harassment Convention, 2019 (No. 190).The Committee asks the Government to provide information on any measures taken to increase awareness about discrimination based on sex and sexual harassment and their underlying causes such as gender stereotypes and prejudices, and to address the causes for underreporting, such as the difficulty to access complaint mechanisms and the fear of reprisals, and information on the procedures available to remedy discrimination based on sex and sexual harassment.

Burden of proof. Harassment. In its previous comments, the Committee asked the Government to provide clarifications on the application of section 32.5 of the Labour Code regarding the burden of proof in harassment claims, and in particular regarding who has the burden to prove that the employer took, in line with section 32(1) of the same law, all necessary measures to prevent harassment. It also asked the Government to provide clarifications on the effects of the existence of the intention of harassment on the complaint. The Committee notes that the Government refers to the wording section 32.5 and indicates that, when assessing acts as moral harassment and harassment, considerations should also be made to the nature of the job, the duties and functions of the employee, the traditions and customs of the city/area and the meaning certain actions have in that area. The Committee notes that the Government does not fully reply to the issues raised, as section 32.5 of the Labour Code, when establishing the shift of the burden of proof, provides that “the person towards which the complaint is being addressed” shall prove that the person “did not intend the harassment”. The Committee would therefore like to recall that, the lack of intent or the existence of intent should not be relevant in harassment issues. It also highlights that the shift of the burden of proof is a useful means of correcting a situation of inequality where, in cases related to equality and non-discrimination, much of the information needed is in the hands of the employer (see 2012 General Survey on the fundamental Conventions, paragraph 885). The Committee observes that it is not clear, under national legislation, who has the burden to prove that the employer took the necessary steps to have a working environment free from harassment.Therefore, the Committee reiterates its request to the Government to clarify: (i) whether, even if the conduct was not intended, it may still constitute harassment and be addressed as such, because it may have the effect of violating the dignity of the complainant; and (ii) who has the burden to prove that the employer took all necessary measures to have a harassment-free working environment.

Articles 2 and 3. Equality of opportunity and treatment for men and women. The Committee notes that the Government makes reference to: (1) the National Employment and Skills Strategy (NESS) 2014–2020 (extended until 2022), which has improved the quality and gender sensitivity of labour market information and has promoted social entrepreneurship and economic empowerment of women; (2) the planning of a gender-sensitive review of the Skill Need Survey (SNS); (3) adoption of Law No.15/2019 on the promotion of employment, the establishment of the National Agency for Employment and Skills (NAES) in 2019 and the inclusion, in some employment programmes, of financial support to cover kindergarten and nurseries costs; and (4) the consideration of gender-related indicators when monitoring employment programmes and labour market information. The Government also indicates that the labour participation of women increased by 12 per cent between 2013 and 2019, but that the gender gap in employment participation increased from 11.9 per cent in 2016 to 14 per cent in 2019. It also provides statistical information on men’s and women’s participation in different sectors and occupations in the public and private sector and in the informal economy. Regarding formal employment, the data provided shows that women who are employed are in the public sector, in public administration, education and health, and when they are in the private sector, in trade transport, accommodation and food services. Women in informal employment seem to participate more in construction and trade, transport, hotel, business and administrative services. Regarding the situation of women in rural areas, the Committee notes that the National Strategy and Action Plan on Gender Equality 2016–2020 has as an objective the economic empowerment of women in rural areas, including by increasing the formalization of jobs and ensuring the enjoyment of property rights on agricultural land (objective 1.3). It also notes that the Economic Reform Programme 2020–2022 refers to a land reform which will enable, protect and respect the property rights of all women, men and young people. In addition, the National Strategy for Rural and Agricultural Development 2014–2020 includes the support for women-run enterprises and farms and indicators disaggregated by gender.The Committee asks the Government to provide information of the measures taken to scale-up the outreach and impact of the different equality and employment policy measures to promote equality between women and men in employment and occupation, including to decrease the gender gap in employment participation. The Committee also requests the Government to provide information on how such measures particularly address the situation of women in rural areas and in informal work, in particular their access to productive resources such as land and credit. It also asks the Government to provide information on the impact of the NESS 2014–2020, currently extended until 2022, on women’s economic empowerment.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the Government’s indication that the Ministry of Foreign Affairs has taken measures to design policies targeting people from disadvantaged groups at risk of exclusion, including Roma and Egyptian communities. The Committee notes that the National Action Plan for the Integration of Roma and Egyptians 2016–2020 includes employment and vocational education and training as a priority sector and mentions several factors linked to the low participation of Roma and Egyptians in employment programmes. The Plan includes poverty and the need to provide for basic needs, discrimination and stigma, lack of ID cards, and little knowledge on the existence of employment programmes. In this regard, the Committee notes that, according to the Albania Report to the European Commission for 2020, the implementation of the National Action Plan reached limited progress because it does not sufficiently increase capacities of the participants, and the next one should be adopted before the end of the year. The Committee further notes that the Government endorsed the Declaration of Western Balkans Partners on Roma Integration within the EU Enlargement Process (Poznan Declaration) in 2019. The Committee also observes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) recommended to Albania to strengthen the implementation of the National Action Plan and to include a gender-perspective in it in order to address multiple and intersecting forms of discrimination affecting in particular women in the Roma and Egyptian communities (CERD/C/ALB/CO/9-12, 2 January 2019 paragraphs 19–22). In the framework of the Universal Periodic Review, the Government also indicated that a network has been created among key ministries to improve coordination in the field of Roma and Egyptian integration (A/HRC/WG.6/33/ALB/1, 22 February 2019, paragraph 119).The Committee asks the Government to provide information on the results achieved of the National Action Plan for the Integration of Roma and Egyptians 2016–2020 and on the content of the future Plan. The Committee also asks the Government to provide information on any other measures taken to increase the labour participation of Roma and Egyptian people, and in particular to address the underlying causes and barriers that prevent them from enjoying equality and non-discrimination in employment and occupation, such as their low level of education and vocational training and discrimination and stigma.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that the tripartite regional consultative councils have not been established. It notes from the Government’s report that the relevant draft regulations that have been prepared, in consultation with the social partners and with the cooperation of the ILO, have not been approved yet. The Government also indicates that the People’s Advocate carried out a round-table consultation including representatives of the private sector and trade unions on the topic of harassment and sexual harassment, and that the National Labour Council meeting scheduled on March 2020 to discuss the ILO Violence and Harassment Convention, 2019 (No. 190), and its accompanying Recommendation No. 206, could not take place due to the sanitary situation regarding Covid-19 pandemic. Recalling the key role of employers’ and workers’ organizations in the implementation of the Convention, theCommittee asks the Government to provide information on any measures taken to ensure that employers’ and worker’s organizations are made aware of, and promote the principle of the Convention.

Article 5. Restrictions on women’s access to employment.Noting that the Government’s report does not contain any information in this regard, the Committee reiterates its request that the Government examines the possibility of reviewing the list of jobs prohibited for women in Decision No. 207 of 2002 in light of the development of scientific knowledge and technology and the principle of gender equality, with a view to ensuring that prohibitions applicable to women’s employment in certain jobs or industries are not based on stereotypes regarding women’s professional abilities and capabilities and are strictly limited to maternity protection.

Awareness-raising and enforcement. The Committee notes the Government’s indication that section 9 of the Labour Code, which prohibits discrimination in employment and occupation, is implemented by courts, the Commissioner for Protection from Discrimination and the State Labour and Social Services Inspectorate. The Committee takes note of the five judicial decisions transmitted by the Government. It also observes that, in 2019: (1) there were 42 judicial proceedings concerning equality and non-discrimination in employment; (2) the Tirana Judicial District Court tried ten cases which mainly concerned compensation for discrimination based on political opinions and origin; (3) two cases were treated by the State Labour and Social Services Inspectorate; and (4) one complaint was registered before the People’s Advocate. The Committee notes the Government’s general indication that the State Inspectorate carries out awareness raising measures addressed to employers. The Committee further notes from the Albania Report to the European Commission for 2020 that the implementation and enforcement of the Labour Code need close monitoring and that, while the impact of labour inspections progressed, the capacity of the State Labour Inspectorate needs to be further strengthened.The Committee asks the Government to continue providing information on: (i) the number, nature and outcomes of cases of discrimination in employment and occupation examined by the Labour Inspectorate, the Commissioner for Protection against Discrimination, the People’s Advocate and the courts; and (ii) the specific measures taken by the Labour Inspectorate to raise awareness among social partners of the principles of equality and non-discrimination, in particular with respect to the discrimination grounds added to the Labour Code in 2015. The Committee also asks the Government to continue strengthening the enforcement of the non-discrimination and equality legal framework by ensuring effective access to remedies for victims and sufficient resources and adequate training for relevant institutions.

Repetition

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.

Repetition

Article 1 of the Convention. Prohibited grounds of discrimination. Legislative developments. The Committee notes with interest the adoption of Law No. 136/2015 which came into force in June 2016 and introduces amendments to the Labour Code. The Committee notes that section 9(2) prohibits discrimination in employment and occupation on a wide range of grounds that are already covered by section 1 of the Protection from Discrimination Law No. 10221 of 2010, and adds the grounds of disability, HIV/AIDS or union affiliation. The prohibition of discrimination covers access to employment, access to vocational training, and working conditions including termination of employment and remuneration (section 9(5)). In case of violations of section 9, the Committee notes that under new section 9(10), the burden of proof shifts to the employer once the plaintiff submits evidence upon the basis of which the court may presume discriminatory behaviour. The Committee further notes that new section 32(2) now defines and prohibits both quid pro quo and hostile environment sexual harassment. The Committee requests the Government to provide information on the application in practice of section 9 of the Labour Code, including on any activities carried out in order to raise awareness of workers, employers and their organizations, as well as of labour inspectors and judges on the new provisions of the Labour Code protecting workers from discrimination in employment and occupation.

Discrimination on the basis of political opinion. The Committee recalls that for a number of years, it has been expressing concern regarding the potentially discriminatory effect of “lustration” laws (Law No. 8043 of 30 November 1995 and afterwards Law No. 10034 of 22 December 2008) which provided for the exclusion of persons who had certain duties under the previous regime from serving in a broad range of public functions. The Committee also recalls that according to an amicus curiae opinion of the Venice Commission of the Council of Europe, aspects of the new “lustration” Law No. 10034 of 2008 were found to interfere disproportionately with the right to stand for election, the right to work and the right to access to public administration. The Committee notes with interest the Government’s indication in its report that by Decision No. 9, dated 2 March 2010, the Constitutional Court of the Republic of Albania unanimously decided that the “lustration” Law No. 10034 of 2008 was unconstitutional and consequently without effect.

Repetition

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.

Repetition

Article 1 of the Convention. Prohibited grounds of discrimination. Legislative developments. The Committee notes with interest the adoption of Law No. 136/2015 which came into force in June 2016 and introduces amendments to the Labour Code. The Committee notes that section 9(2) prohibits discrimination in employment and occupation on a wide range of grounds that are already covered by section 1 of the Protection from Discrimination Law No. 10221 of 2010, and adds the grounds of disability, HIV/AIDS or union affiliation. The prohibition of discrimination covers access to employment, access to vocational training, and working conditions including termination of employment and remuneration (section 9(5)). In case of violations of section 9, the Committee notes that under new section 9(10), the burden of proof shifts to the employer once the plaintiff submits evidence upon the basis of which the court may presume discriminatory behaviour. The Committee further notes that new section 32(2) now defines and prohibits both quid pro quo and hostile environment sexual harassment. The Committee requests the Government to provide information on the application in practice of section 9 of the Labour Code, including on any activities carried out in order to raise awareness of workers, employers and their organizations, as well as of labour inspectors and judges on the new provisions of the Labour Code protecting workers from discrimination in employment and occupation.

Discrimination on the basis of political opinion. The Committee recalls that for a number of years, it has been expressing concern regarding the potentially discriminatory effect of “lustration” laws (Law No. 8043 of 30 November 1995 and afterwards Law No. 10034 of 22 December 2008) which provided for the exclusion of persons who had certain duties under the previous regime from serving in a broad range of public functions. The Committee also recalls that according to an amicus curiae opinion of the Venice Commission of the Council of Europe, aspects of the new “lustration” Law No. 10034 of 2008 were found to interfere disproportionately with the right to stand for election, the right to work and the right to access to public administration. The Committee notes with interest the Government’s indication in its report that by Decision No. 9, dated 2 March 2010, the Constitutional Court of the Republic of Albania unanimously decided that the “lustration” Law No. 10034 of 2008 was unconstitutional and consequently without effect.