Observación (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - República Democrática Popular Lao (Ratificación : 2008)

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Articles 1, 2 and 3 of the Convention. Protection of workers against discrimination. Legislation. Scope of application. The Committee previously noted that the Labour Law (2014) excludes civil servants, among others, from its application and that, according to the Government, the Law on Government Officials No. 74/NA of 2015 prohibits discrimination against government officials. It also noted that, by requiring domestic workers to “comply with the working contract”, section 6 excludes them from the protection of the Labour Law. Recalling that the principle of the Convention applies to all workers, the Committee asked the Government to indicate how civil servants and domestic workers are protected against discrimination in employment and occupation. The Committee notes the Government’s indication in its report that the contract between domestic workers and their employers is governed by specific regulations. The Government adds that the Ministry of Labour and Social Welfare is drafting a Decision on the management of domestic workers, which will be in conformity with the Convention. The Committee therefore asks the Government to provide detailed information on the specific regulations that apply to domestic workers, to which the Government refers, and to indicate how these regulations protect them from discrimination in employment and occupation on the grounds set out in the Convention. It also asks the Government to provide information on the draft Ministerial Decision on the management of domestic workers. Noting the Government’s indication that the Law on Government Officials No. 74/NA of 2015 is only available in Lao, the Committee asks the Government to provide a copy of the Law and to identify the specific provisions that protect civil servants from discrimination in employment and occupation on the grounds set out in the Convention.

Article 1(1)(a). Prohibition of discrimination. In its previous comments, the Committee noted that the Labour Law 2014, reforming the Labour Law 2007, prohibits direct and indirect discrimination in the workplace in general terms (sections 3(28) and 141(9)), without clearly defining direct and indirect discrimination. In addition, while there are provisions prohibiting gender discrimination, the Committee noted that the Labour Law 2014 no longer explicitly prohibits discrimination on the grounds of race, religion and belief, as previously provided for in section 3(2) of the Labour Law 2007, nor does it prohibit discrimination based on colour, political opinion, national extraction or social origin. The Committee notes the Government’s reply, referring to article 35 of the Constitution (as revised in 2015), which provides that “Lao Citizens are equal before the law, irrespective of their gender, social status, education, beliefs and ethnic group”. It also notes the Government’s very general statement that it promotes equal rights for all persons without discrimination. The Committee is therefore once again bound to recall the importance of clear and comprehensive definitions of what constitutes discrimination and, in particular, of what constitutes direct and indirect discrimination, in identifying and addressing its many manifestations (2012 General Survey on the fundamental Conventions, paragraphs 743–745). In addition, recalling that the Labour Law 2014 only appears to prohibit discrimination by employers towards employees, the Committee once again draws the Government’s attention to the fact that the Convention covers a wider range of situations, including the situation of discrimination by an employee towards another employee. Finally, the Committee again emphasizes that, where legal provisions are adopted to give effect to the Convention, they should include at least all the grounds set out in Article 1(1)(a), namely race, colour, sex, religion, political opinion, national extraction and social origin (2012 General Survey, paragraph 853). The Committee once again asks the Government to clarify whether the prohibition of discrimination concerns both employment and occupation and applies equally to employers and employees. It also asks the Government to take steps to amend the Labour Law 2014to clearly define direct and indirect discrimination, and explicitly prohibit discrimination on at least all the grounds set out in the Convention, and to provide information on the progress achieved to this end. In the meantime, the Committee once again asks the Government to indicate how workers are protected in practice against direct and indirect discrimination on all the grounds set out in Article 1(1)(a) of the Convention.

Discrimination based on sex. Sexual harassment. The Committee previously noted that section 83(4) of the Labour Law 2014 allows a worker to bring an end to the employment contract in the event of harassment or sexual harassment by the employer, or when the employer ignores sexual harassment, and that section 141(4) prohibits employers from violating the personal rights of employees, especially women employees, by means of speech, sight, text, touch or touching inappropriate areas. The Committee however noted that sexual harassment is not explicitly defined and prohibited in the Labour Law 2014, and that it is unclear how the above provisions protect workers from all forms of sexual harassment in employment and establish adequate remedies and sanctions. In reply to the Committee’s request for information on the measures taken by the Government to define, prevent and prohibit sexual harassment at work, the Government replied that rape is prohibited by sections 128 and 129 of the Penal Law 2005. The Committee therefore recalled that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher standard of proof applicable, which is harder to meet, especially if there are no witnesses, and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (2012 General Survey, paragraph 792). The Committee notes with regret that the Government has not replied to its previous requests. The Committee also notes, from the concluding observations of 2018 of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the persistent barriers, including stigma, fear of retribution, deep-rooted discriminatory gender stereotypes and limited legal literacy, that deter women and girls from registering their complaints regarding gender-based discrimination and sexual harassment (CEDAW/C/LAO/CO/8-9, 14 November 2018, paragraph 13(a)). The Committee therefore once again asks the Government to take action to: (i) define, prevent and prohibit sexual harassment in employment and occupation, both quid pro quo and hostile working environment harassment; (ii) provide for adequate sanctions and remedies; and (iii) provide information on the progress achieved in this regard. In the meantime, it asks the Government to provide information on the application in practice of sections 83(4) and 141(4) of the Labour Law 2014, including with respect to cases of sexual harassment. With a view to raising awareness of the issue, the Committee once again encourages the Government to formulate and implement practical measures to prevent and eliminate sexual harassment in employment and occupation, in cooperation with employers’ and workers’ organizations, such as through practical guidance, training, seminars or other awareness-raising activities, and to provide information on any progress made to this end. Finally, with regard to enforcement, the Committee takes note of the Government’s statement that there have been no reports of sexual harassment cases and refers to its comments in its direct request.

Article 1(1)(b). Additional grounds of discrimination. The Committee previously noted that sections 87(1), 100 and 141(2) of the Labour Law 2014 provide protection against discrimination on the basis of pregnancy, marital status and HIV status in recruitment and termination of employment, but no longer prohibit discrimination based on nationality, age or socio-economic status, which were previously included in the Labour Law 2007. Noting that the Government has once again not provided information on this subject, the Committee is bound to reiterate its request to the Government to indicate the measures taken, in consultation with employers’ and workers’ organizations, with a view to maintaining the same level of protection against discrimination on the basis of nationality, age or socio-economic status as previously contained in the Labour Law 2007 with respect to all aspects of employment.

Article 4. Activities prejudicial to the security of the State. The Committee has repeatedly asked the Government to provide information on the application in practice of section 65 of the Penal Law 2005, which establishes a broad prohibition of activities considered to be prejudicial to the security of the State, including “propaganda activities”, and to indicate how it ensures that this provision does not result in practice in discrimination based on political opinion in employment and occupation. The Committee notes the Government’s indication that section 65 has been replaced by section 117 of the new Penal Law 2017, and that its contents remain the same. It also notes the Government’s repeated reference to article 44 of the Constitution on freedom of association and section 11 of the Trade Union Law 2007 on collective agreements. However, it notes with concern that the Government has once again not provided any information on the application in practice of the current legislation. The Committee therefore urges the Government to provide detailed information on the application in practice of section 117 of the Penal Law 2017 and section 11 of the Trade Union Law 2007, and in particular to indicate the steps taken to ensure that these provisions do not in practice result in discrimination in employment and occupation on the basis of political opinion, including information on any complaints made by employees or extracts of any court decisions in this regard.

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