Observación (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

1. The Committee notes the communication by the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2004 and the Government’s reply, received on 18 November 2004, concerning discrimination against male and female migrant workers on the basis of religion, race, sex and nationality. The Committee notes that some of the issues raised by the ICFTU concern the modalities of the foreign labour sponsorship system and abuses by recruitment agencies which are beyond the scope of Convention No. 111. With respect to the allegations made by the ICFTU with regard to the alleged widespread practice of forced confinement and slavery conditions of many women migrant workers, the Committee refers to its comments in its 2003 observation under Convention No. 29.

Discrimination against migrant workers on the basis of race, religion and sex

2. The Committee notes that the ICFTU has alleged substantial discrimination against migrant workers on the basis of race, religion, sex and nationality. The Committee recalls that nationality is not one of the grounds of discrimination formally prohibited by Convention No. 111, but that migrant workers are nonetheless protected by the instrument in so far as they are victims of discrimination in employment and occupation on the basis of one or more of the prohibited grounds of discrimination in the Convention, including religion, race or sex (see paragraph 17 of the 1988 General Survey on equality in employment and occupation).

3. Articles 1 and 2 of the Convention. Religious discrimination. The Committee notes the comments by the ICFTU that migrant workers who are not Muslim must refrain from public display of religious symbols such as Christian crosses or the Hindu tilaka. The ICFTU further maintains that although discrimination against Hindus appears to have eased somewhat as job advertisements in newspapers no longer request applications from Muslims and Christians only, religious discrimination continues to exist, either directly when job advertisements exclude members of certain religious groups from applying, or indirectly, by preventing migrant workers from exercising their religion openly, which could deter applicants. The Committee notes the Government’s reply that there is no discrimination of any kind in occupation or employment and that the Code on Labour and Workers includes the concept of non-discrimination as it does not deal with a worker’s religion, political views, race or national origin and defines a worker as being a person, regardless of his or her beliefs. The Committee requests the Government to state whether job advertisements in fact still include references to religion, and to provide information on the measures taken or envisaged to address the perception of religious discrimination, both direct and indirect, in all its forms.

4. Discrimination based on race and national extraction. The Committee notes that the ICFTU refers to the concern expressed by the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/62/CO/8) about allegations of substantial racial prejudice against migrant workers, in particular those coming from Asia and Africa. In this regard, the ICFTU states that although the labour law protects nationals and non-nationals against performing work to which they have not agreed and protects them from abuse by their employer, including contract violations, physical abuse, providing misleading information and unfair treatment, employers of low-paid migrant workers widely disregard these provisions. In the same context, the Committee notes the statement made by the ICFTU that the labour sponsorship system entails a heavy dependency of the migrant worker on his or her employer and allows employers to exert disproportionate pressure on a worker. According to the ICFTU, this has a negative impact on the conditions of work of migrant workers as employers have forced migrant women and men to work excess hours without overtime pay or days of rest. Many employers are said to violate the provisions of the labour law, sometimes resulting in gross exploitation of migrant workers, such as reducing wages illegally and withholding vacation days and accumulated unpaid wages and benefits from their employees. The ICFTU further alleges that the migrant worker’s heavy dependency on the employer also inhibits access to the complaint mechanisms of the Labour Disputes Department.

5. The Committee notes that the Government states that there is no discrimination in any form in any of the regulations in force and that there are special regulations governing the relationship between an employer and a migrant worker by virtue of the Council of Ministers Order No. 166 of 12/7/1421. As for the alleged reduction of wages, the Government states that if indeed such practice exists, it would be a blatant violation of the existing regulations and punishable by law. However, the Government indicates that some workers may see their wages diminish because of a distortion resulting from mediating offices in countries sending these workers, because wrong information is given on the exact amount of the wages. The Government is currently discussing the issue with all the concerned embassies and has requested their collaboration to address the issue.

6. The Committee notes the Government’s statement that the allegations are too general and that if there are a few cases, this cannot be taken to be a general practice. The Government maintains that the accuracy of this statement is substantiated by the fact that foreign workers continue to come to Saudi Arabia for work. The Government further reiterates its previous statements that the Islamic Shari’a is the Constitution of the Kingdom and that its principles of dignity and the prohibition of injustice in all its forms provide for justice and equality. The Committee expresses concern, given the seriousness of the allegations, that the modalities of the foreign labour sponsorship system, especially the possibility for employers to exert disproportionate power on migrant workers, may lead to discrimination against migrant workers on the basis of race and national extraction with respect to their conditions of work.

7. In its previous observation, the Committee had drawn the Government’s attention to Article 2 of the Convention, which requires the Government to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation by methods appropriate to national conditions and practice, with a view to eliminating any discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin in respect thereof. It has also pointed to the importance of taking measures to address discrimination, both direct and indirect, in all its forms and requested the Government to take the necessary steps to ensure that the principles of the Convention in respect of promoting equality in employment and occupation on all the grounds listed in Article 1(1)(a) are fully applied, including the grounds of religion, political opinion, race and national extraction. The Committee finds no indication from the Government’s report that any such measures have been taken. It urges the Government to ensure that all workers, including migrant workers, are protected against discrimination on all the grounds prohibited in Article 1(1)(a) of the Convention and to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation by methods appropriate to national conditions and practice, which applies to all workers, including male and female migrant workers. It requests the Government in addition to carry out a detailed examination of the situation of migrant workers with a view to determining the situation in practice with regard to allegations of discrimination on the grounds of race and national extraction.

8. Discrimination based on sex. The Committee notes the statement by the ICFTU that migrant domestic workers have no protection under the labour law and are particularly vulnerable to exploitation and summary dismissals. Women are particularly affected, as a large majority of these workers are female. At least 1 million women from Sri Lanka, the Philippines and Indonesia are working legally in some of the lowest paid jobs and an overwhelming majority of them are domestic workers. Small numbers of women from Africa and other Asian countries are also employed in low status jobs. The ICFTU maintains that sex-based discrimination is a serious problem in Saudi Arabia and that there is a general pattern of discrimination and abuse of women migrant workers, including forced confinement, sexual harassment, sexual abuse and rape. In addition to complaints related to long hours of work, unpaid salaries, denial of benefits and intimidation from employers, the ICFTU states that many domestic workers share additional hardships, due to their isolated working environment. The ICFTU also claims that the rights of women migrants are further compromised by the prevailing gender segregation, restrictions on freedom of expression and movement, and gender bias in the judicial system.

9. The Committee notes that the Government states, in reply, that domestic workers who live among Saudi families are in a position of security because of the care and attention paid to them by their treatment as members of the family. The Government also reiterates that it endeavours to protect the rights and dignity of all persons who live on its territory and to provide them with justice and equality. Considering the seriousness of the allegations made by the ICFTU with respect to female migrant domestic workers of African and Asian origin, the Committee requests the Government to provide information on the measures taken to ensure that these workers are protected in law and practice against abusive and discriminatory treatment in their living and working conditions.

10. Enforcement. The Committee notes the statement provided by the ICFTU that although progress has been achieved in filing complaints, enforcement remains a problem with respect to complaints submitted by migrant workers. The ICFTU refers in particular to the inability or reluctance of Saudi authorities to enforce judgements against employers of migrant workers and to the fact that the overwhelming majority of migrant workers, many of them women, have no knowledge of the relevant enforcement bodies, and no opportunity to access them or be informed of their rights. The Committee asks the Government to provide information on the measures taken or envisaged to inform migrant workers of their rights, to improve their access to the courts and other relevant bodies and to ensure the effective enforcement of judicial decisions regarding their complaints. Please also provide information on the number of complaints of discrimination based on race and sex received from male and female migrant workers and the remedies provided to these workers.

Equality of opportunity and treatment between men and women

11. Occupational segregation by sex. For a number of years, the Committee has expressed concern that section 160 of the 1969 Labour Code, which provides that "in no case may men and women co-mingle in the place of employment or in the accessory facilities or other appurtenances thereto", might result in de facto occupational segregation on the basis of sex. The Committee notes the Government’s statement that a new draft Labour Code is still under examination in the Shoura Council. It hopes that the draft Code will be adopted soon and that it will take into account the requirements of the Convention and the Committee’s comments with regard to the possibility of extending women’s occupational and employment opportunities into prohibited areas.

12. Further in this context, the Committee had earlier noted the Government’s statements that the application of section 160 did not result in de facto segregation on the basis of sex because women have access to occupations in a number of sectors also occupied by men, including commerce, industry, education and medicine. Consequently, the Committee had encouraged the Government to make every effort to provide statistical data on the distribution of men and women in the different jobs and occupations and at the different levels in the public service. The Committee notes the Government’s statement that it is paying great attention to increasing the opportunities and fields for women’s employment and that women have been promoted into state jobs, including higher positions, over the past few years. It is clear from the information provided, however, that the practice of keeping women separate from men in the workplace persists. The Committee notes from the statistics provided on the Saudi employees employed by the State in 2002-03, that men and women are employed in equal numbers in the education sector but that no women are employed as judges, state prosecutors and legal investigators. The Committee asks the Government to indicate the reasons for the non-appointment of women judges, legal investigators and prosecutors and the measures taken to promote their access into these occupations. Noting further the Government’s indication that the relevant information and statistics on the distribution of men and women employed in the civil service at grades 13 or higher, and on the distribution of men and women in the different jobs and occupations, will be communicated once they are made available, the Committee hopes that the Government will very soon be in a position to provide such information in its report.

13. Article 3(e). Access of women to vocational training and education. The Committee notes from the statistics provided by the Government that the educational and training courses and programmes for women mainly concern teaching, home economics, secretarial skills, computer skills, administration and finance, librarianship, interior design, dressmaking, and food and packaging. While appreciating that the number of women enrolled in vocational training programmes has increased, the Committee must observe that many of these courses offered to women continue to be in fields considered as being traditionally feminine. Noting that no information is provided on the number of women who have enrolled in the abovementioned courses and who have subsequently been employed, the Committee requests the Government to indicate the measures taken in regard to career guidance and placement services targeting women having undergone this training.

14. Further to the above, the Committee notes that in reply to its previous request for information on the implementation of a national policy on non-discrimination in vocational education and training, the Government indicates that it has made some efforts to provide more educational and training opportunities for women. It notes in particular: (a) the adoption of Order No. 63 of 2004 of the Council of Ministers on procedures relating to the determination of curricula and educational inputs for girls; (b) the adoption of Order No. 120/12 of 2004 on increasing the opportunities and areas of work of Saudi women and promoting their training opportunities through the Human Resource Development Fund; (c) the decision to expand the fields of training and education abroad for Saudi women so that it covers all specializations, including engineering; (d) the opening of a women’s university and the Government’s intention to examine the possibility of opening more universities for women; (e) the adoption of procedures that guarantee increasing job opportunities for women; and (f) the establishment of a national committee specialized in women’s affairs. The Committee welcomes these measures and asks the Government to provide information in its next report on how they have contributed in practice in providing more diversified training and education to women and have promoted their subsequent access to a wider range of occupations in the public and private sectors. Please also provide specific information on the activities of the newly established committee on women’s affairs with respect to the application of the Convention.

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