Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Nepal (Ratificación : 1974)

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Observación

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Article 1(1)(a) of the Convention. Discrimination based on political opinion. The Committee previously noted with concern that sections 10 and 61(2) of the Civil Service Act, which provides that “moral turpitude” shall be a ground for exclusion or removal from the civil service, could lead in practice to discrimination based on political opinion due to the lack of clarity as to the meaning of the term. Noting the Government’s repeated indication that it does not consider that this provision provides a ground for exclusion or removal on the basis of political opinion, the Committee takes note of the two judgments handed down by the Administrative Court in 2011 and 2015, which were forwarded by the Government. In these judgments, the Court held that being involved in the trafficking of two women or stealing and selling Government’s property was considered “moral turpitude”. The Court states that “although there is no concrete definition [of] crimes of moral turpitude, generally it is distinct from criminal cases and is considered as act related with moral, behavioral and personal character degradation of person of sound knowledge and depends upon the gravity of the subject matter, society’s perception upon such act, international standards and precedence.” Welcoming this information, the Committee asks the Government to continue to provide information on any cases where a Court has interpreted the term “moral turpitude”, including administrative or judicial decisions in relation to sections 10 and 61(2) of the Civil Service Act, in particular in the context of the expression of the exercise of political opinion.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee notes with interest the adoption of the Rights of Persons with Disabilities Act of 2017 which provides that the Government shall provide vocational training in order to develop professionalism and create self-employment by enhancing the skills of the persons with disabilities and that no enterprise shall discriminate against persons with disabilities with regard to employment and any matter related thereto (section 24(1) and (3)). It notes however that in its concluding observations, the UN Committee on the Rights of persons with Disabilities (CRPD) expressed concern about (i) the overall lack of information on social, economic, employment and other areas of public life of women with disabilities in Nepal – including their economic and employment status; (ii) the system of special and segregated schools for persons with disabilities; and (iii) the lack of information on the effectiveness of the employment quota for persons with disabilities in the civil service (CRPD/C/NPL/CO/1, 16 April 2018, paragraphs 11, 35 and 39). The Committee asks the Government to provide information on the application of section 24(1) and (3) of the Rights of Persons with Disabilities Act of 2017 in practice, including on its impact on the integration of persons with disabilities in the labour market. It asks the Government to provide information on any measures taken to promote equality of opportunity and treatment of persons with disabilities in all aspects of employment and occupation, including access to education and vocational training, access to employment and to particular occupations, and terms and conditions of employment, such as quotas, and on the results achieved, both in the public and private sectors. The Committee also asks the Government to provide statistical information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Articles 2 and 3. National equality policy. Referring to its previous comments, the Committee welcomes the adoption in 2015 of the National Employment Policy which provides guidelines to create equal opportunity and employment across all sectors of economy by targeting determined social groups. The Committee however notes that the National Gender Equality Policy remains pending and that, in its concluding observations, the CEDAW expressed specific concern in that regard (CEDAW/C/NPL/CO/6, 14 November 2018, paragraph 12(b)). The Committee asks the Government to provide information on the implementation of the National Employment Policy of 2015, including information on the content of the target programmes and their achievements. It further asks the Government to provide information on any progress made in the adoption of the National Gender Equality Policy, as well as on any other specific programmes and projects aimed at promoting equality of opportunity and treatment in employment and occupation of women, Dalits, indigenous peoples, and other marginalized groups, including access to resources.

Equality of opportunity and treatment for men and women. Referring to its previous comments concerning the significant horizontal segregation in certain industries, the Committee notes the Government’s statement that vertical segregation in the labour market is declining but that horizontal occupational segregation prevails. It notes that the Fourteenth Three-Year Development Plan (2016/17–2018/19) prescribes a comprehensive strategy to achieve sustainable social and economic development and encompasses several areas of focus, which include: (i) increase growth and employment through tourism, small and medium business and transformation of agriculture; and (ii) the promotion of gender equality and social inclusion. While taking note of the constitutional recognition of the National Women’s Commission (articles 252 and 253 of the Constitution), the Committee notes the Government’s statement that no recommendation concerning employment has been made by the Commission so far. The Government adds that a gender-focused person or unit has been established in each ministry to ensure gender mainstreaming and institutionalization of gender equality and social inclusion. The Government adds that the new Employment Policy of 2015 provides guidelines to create equal opportunity and employment across all sectors of economy by targeting particular social groups. The Government, however, indicates that more time, effort and resources are needed to make substantial improvements regarding gender inequality. The Committee welcomes the adoption of the new Decent Work Country Programme (DWCP) for 2018–2022 which explicitly establishes gender equality and non-discrimination as a cross-cutting policy driver, while acknowledging that in the workplace, women face several forms of discrimination, such as limited access to jobs, unequal pay and little protection against abuse. In this regard, the Committee takes note of the third Labour Force Survey (LFS) 2017/2018 carried out by the Central Bureau of Statistics (CBS), in collaboration with the ILO in the framework of the DWCP. It notes more particularly that the labour force participation of women is still substantially lower than that of men (26.3 per cent and 53.8 per cent respectively), while the unemployment rate of women remains high (13.1 per cent compared to 10.3 per cent for men). The Committee further notes from the LFS that 66.2 per cent of women are employed in the informal sector (compared to 59.7 per cent of men). The LFS further acknowledges that vertical and horizontal occupational segregation persists with women being mainly concentrated in agriculture (33 per cent), wholesale and retail trade (20.6 per cent) and manufacturing (13.4 per cent) while representing only 13.2 per cent of managers (compared to 86.8 per cent for men). In addition, the Committee notes that in its concluding observations, the CEDAW expressed concern about (i) the lack of information on measures taken to eliminate horizontal and vertical segregation in the labour market; (ii) the lower enrollment and higher drop-out rates among girls; (iii) the lack of access to natural resources and credit facilities for women, especially those belonging to vulnerable groups; and (iv) the low level of awareness among women and girls of their rights and the mechanisms available for gaining access to justice and seeking remedies (CEDAW/C/NPL/CO/6, 14 November 2018, paragraphs 10(a), 24(a), 32, 34 and 40). The Committee urges the Government to strengthen its efforts to address gender stereotypes and vertical and horizontal occupational gender segregation, by enhancing women’s economic empowerment and access to formal employment and decision-making positions, as well as by encouraging girls and women to choose non-traditional fields of study and professions while reducing early dropout from school for girls, including in the framework of the Fourteenth Three-Year Development Plan (2016/17–2018/19) and the Decent Work Country Programme for 2018–2022. It asks the Government to provide information on the specific measures taken to that end, including through the removing of any restriction imposed on women wishing to emigrate for domestic work, as well as on any awareness-raising activities undertaken on the principle of the Convention and the available procedures and remedies, in particular among women to better understand and claim their rights. The Committee asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.

General observation of 2018. 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 5. Special measures of protection and assistance. The Committee previously noted the quotas introduced in the civil service, police and other Government services in order to increase the representation of women and disadvantaged groups, but observed large disparities between men and women recruited in each target group and the low level of women in the civil service. The Committee welcomes the Government’s indication that actions were taken to promote women’s participation in the civil service and this resulted in an increase from 8.5 per cent in 2008 to 17.7 per cent in 2016. The Committee further notes that article 18(3) of the new Constitution and section 19 of the new National Civil Code of 2017, both provide that the adoption of special provisions by law for the protection, empowerment or advancement of disadvantaged categories of persons such as women socially and culturally disadvantaged, Dalits, minorities, indigenous people, persons with disabilities, or citizens originating from isolated regions and financially deprived citizens, shall not be considered as discrimination. The Committee asks the Government to continue to provide information on the achievements of the quotas set in the public service for women and other disadvantaged groups, including statistical information on the number of workers belonging to these target groups employed in the civil service, disaggregated by sex, grade and occupational category. It further asks the Government to provide information on the application of article 18(3) of the new Constitution and section 19 of the new National Civil Code of 2017 in practice, including on any additional special measures of protection or assistance envisaged or taken within this framework, in both the public and private sectors.

Restrictions on women’s access to employment and on women’s employment. The Committee notes that, in its 2018 report, the UN Special Rapporteur on the human rights of migrants expressed concern about (i) the 2015 guidelines regarding Nepalese migrant domestic workers which require Nepalese women who wish to emigrate for domestic work to have reached the age of 24 and prohibits women with a child below the age of 2 from taking up domestic work outside Nepal; and (ii) the fact that in early 2017 the parliamentary International Relations and Labour Committee instructed the Government to temporarily stop Nepalese women migrants from going to the countries of the Gulf Cooperation Council for domestic work. The Special Rapporteur was concerned about stigma around the migration of women, loosely associated with prostitution or trafficking for sex work, and highlighted that the solution to the problems faced by domestic workers could not be to discriminate against them through the imposition of bans or other means of violating their right to leave the country (A/HRC/38/41/Add.1, 30 April 2018, paragraphs 77 and 78). The Committee further notes that in its concluding observations, the CEDAW also expressed concern about (i) the restrictions imposed on women with regard to access to employment abroad under the Foreign Employment Act of 2007, in addition to the guidelines on women migrant domestic workers; and (ii) the restrictions on freedom of movement and limited predeparture training programmes, which leave women exposed to discriminatory practices, including physical abuse and sexual assault, forced labour and unequal pay (CEDAW/C/NPL/CO/6, paragraph 36). The Committee asks the Government to take the necessary steps to remove any restriction imposed on women with regard to access to employment abroad and to provide information on any progress made in this regard. In order to allow women the same opportunities as men regarding access to all types of employment, the Committee also asks the Government to consider taking active measures to ensure better protection for men and women wishing to work abroad, in particular as domestic workers, such as for example, concluding bilateral labour agreements, ensuring full monitoring and accountability of recruitment agencies, ensuring that women have an employment contract before migrating and equipping embassies to respond quickly to complaints of abuse.

Enforcement. The Committee notes the Government’s indication that during the tripartite meeting conducted on February 2017 on the Government’s report on the application of the Convention, several participants raised concerns about the need to improve the implementation of the national legislation. The Committee notes that, as highlighted in the DWCP for 2018–2022, the increased scope and functions of the labour inspectorate, coupled with the fact that its staff is limited, raises questions as to the effectiveness of labour inspections. It notes that in its concluding observations, the CEDAW also expressed concern about the inadequate inspection of workplaces in the formal and informal sectors, including in domestic work and the entertainment sector, directed at guaranteeing the implementation of the working conditions defined in the new Labour Act (CEDAW/C/NPL/CO/6, paragraph 34(d)). The Committee asks the Government to provide information on the measures taken to effectively implement the national legislation, including through the strengthening of the labour inspectorate, and to raise awareness of direct and indirect discrimination in employment and occupation among law enforcement officials, workers, employers and their respective organizations, as well as of the remedies and procedures available. It further asks the Government to provide information on the number, nature and outcome of any cases or complaints on discrimination in employment dealt with by labour inspectors, the courts or any other competent authority.