Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - México (Ratificación : 1961)

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Observación

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The Committee notes the observations of the Independent Trade Union of Men and Women Workers of the Government of the State of San Luis Potosi (SITTGE) received on 22 June and 6 October 2015 and 3 May 2016, referring to the discrimination faced by 70 workers who have different conditions of work from those of other workers and are facing proceedings for dismissal or removal from their employment. The Committee also notes the observations of SITTGE received on 8 September 2016. The Committee further notes the observations from the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) and the International Organisation of Employers (IOE) received on 25 July 2016, referring to the extensive conciliation activity undertaken by the National Council for the Prevention of Discrimination (CONAPRED). The Committee requests the Government to send its comments on all these observations.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Article 1(1)(a) of the Convention. Grounds of discrimination. The Committee notes the amendment of 30 November 2012 to the Federal Labour Act, sections 2 and 3 of which establish the following prohibited grounds of discrimination: ethnic or national origin, gender, age, disability, social status, state of health, religion, migration status, opinions, sexual preference and marital status. Section 56 provides that, in addition to the enumerated grounds, no distinction may be made or exclusion applied on the grounds of sex, pregnancy or family responsibilities. The Committee recalls that the provisions which are adopted to give effect to the Convention should include all the criteria set out in Article 1(1)(a) of the Convention. The Committee notes that race, colour, national extraction, social origin and political opinion are not explicitly covered by the Federal Labour Act. In order to determine the scope of the provisions of the Federal Labour Act and its conformity with the Convention, the Committee requests the Government to indicate whether: national origin covers national extraction (which is broader than nationality and applies also to differences between citizens of the same country, based on birth or foreign extraction); ethnic origin covers race and colour; political opinion is covered by opinions and social status covers social origin (which is broader and can also refer to the social situation of family members in the past), and to provide relevant court cases in this regard.

Discrimination on the basis of pregnancy. In previous comments, the Committee noted with concern the practice of requiring pregnancy tests to obtain or retain employment, particularly in the export processing zones. The Committee therefore notes with interest that, in addition to the protection established in section 56, the recently amended Federal Labour Act in section 113 prohibits employers from requiring certificates that women are not pregnant to obtain or keep a job, or for promotion, and from dismissing or directly or indirectly coercing women to resign because of pregnancy, a change in civil status or care for children. The Committee requests the Government to provide information on the application in practice of these provisions. The Committee requests the Government to indicate the manner in which it is guaranteed that the existing legislation is also effectively applied in export processing zones, the various complaints mechanisms available for these kinds of acts, and the number of complaints filed, including in export processing zones. The Committee also requests the Government to provide concrete information on the measures adopted in the export processing zones with a view to eliminating discrimination based on sex and their impact.

Discrimination on the basis of race and colour. The Committee has for many years been referring to the need to take measures to investigate the existence of the practice of publishing advertisements for vacancies that discriminate in relation to race and colour. The Committee notes the Government’s indication of the publication, with the assistance of the National Council for the Prevention of Discrimination (CONAPRED), of the guide on institutions committed to inclusion, aimed at public and private institutions, which proposes measures for equality. In addition, CONAPRED has been carrying out various training activities since 2010. The Committee nevertheless notes the conclusions of the UN Committee on the Elimination of Racial Discrimination (CERD) on the existence of structural racial discrimination, the lack of visibility of the situation of Afro-descendants and the situation of indigenous peoples (CERD/C/MEX/CO/16-17 of 9 March 2012). While welcoming the measures adopted by CONAPRED, the Committee requests the Government to take additional, concrete and specific measures to address discrimination on the basis of race and colour, to provide information on the cases and complaints filed on that subject and on the action taken as a result.

Sexual harassment. The Committee notes that the Federal Labour Act, as amended, defines sexual harassment in section 3bis as “a form of violence in which, even where there is no subordination, there is an abusive exercise of power that incites a state of defencelessness and risk for the victim, regardless of whether it takes the form of one or of several acts”. The Committee notes, however, that while the Federal Labour Act foresees sanctions in Part XVI, these do not appear to apply in the case of violations of 3bis. The Committee had previously noted that the procedures available with respect to sexual harassment ended in the termination of the employment relationship and the payment of compensation, and raised concerns that the termination of the employment relationship was a penalty against the victim, and could dissuade victims from bringing complaints. The Committee notes further that the penal codes of all the federated entities contain provisions punishing sexual harassment. The Government has also provided detailed information on the procedures for reporting sexual harassment to the Office of the Attorney-General of the Republic and on how the complaints are dealt with, the duration of the procedures and the application in practice of the Protocol for the intervention in cases of sexual harassment in the public administration, and the various awareness-raising activities carried out. Recalling that measures to prevent and prohibit sexual harassment in employment and occupation should cover both quid pro quo and hostile environment harassment, the Committee requests the Government to indicate the manner in which section 3bis of the Federal Labour Act covers these two elements. The Committee also requests the Government to indicate the procedures, sanctions and remedies available pursuant to the legislation applicable to sexual harassment in employment and occupation. The Government is also requested to indicate how it is ensured that complaints of sexual harassment do not result in the termination of the victim’s employment relationship. Please provide information on the number and nature of cases of sexual harassment filed, including under 3bis of the Federal Labour Act, and the penal codes of the federated entities.

Women domestic workers. In relation to the observations made by the National Union of Workers (UNT), the Committee notes the measures adopted by the Government to raise awareness and publicize the situation of women domestic workers. The Committee requests the Government to provide information on access of women domestic workers to administrative and legal remedies for the protection of their labour rights and any difficulties that they face in this regard. Please provide information on the number of complaints of discrimination in employment made by women domestic workers, indicating the grounds and the action taken as a result.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.