Solicitud directa (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Arabia Saudita (Ratificación : 1978)

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Observación

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous comments, the Committee asked the Government to: (1) take steps to ensure that the necessary measures to prevent and combat sexual harassment in the working environment, pursuant to section 5 of the Anti-Harassment Act of 2018 and its implementing Order, are put in place and raise awareness among employers’ and workers’ organizations as well as public administration employees and enforcement officers on the provisions of this Act; (2) ensure that the definition of sexual harassment in the Act covers both quid pro quo and hostile work environment harassment and that victims have access to appropriate remedies; (3) confirm that the Act applies to all categories of workers and to all sectors of the economy; (4) provide detailed information on the implementation of the Act in practice by employers in both the private and public sectors, in particular regarding the reporting of sexual harassment and the burden of proof; (5) provide information on any cases of sexual harassment detected by or reported to labour inspectors and their outcome; and (6) supply a copy of the Guide on Workplace Ethics. The Committee takes note of the “Regulations on Protection from misbehaviour conducts at the workplace” (Ministerial Decision No. 20912 of 02/02/1441 Hegire (2019) (hereinafter “Regulations”)) adopted pursuant to section 38 of the implementing regulations of the Labour Law and section 5 of the Anti-Harassment Act. It notes that section 1 of the Regulations provides a broad definition of misbehaviour conduct, which includes any form of violence, physical or verbal, exploitation, threat, harassment, including sexual, and any form of discrimination, etc. that occur particularly by using any means of communication, including through the use of modern technology. Section 1 also defines sexual harassment as any unwanted verbal, non-verbal or physical behaviour of a sexual nature with the purpose of violating the dignity of a person or creating an intimidating, hostile work environment. The Committee notes with interest that the definition of sexual harassment in the Regulations covers both quid pro quo and hostile work environment harassment. Pursuant to section 2, these Regulations apply to all workers in the private sector in the workplace; during break time; during work-related trips, travel training, events or social activities; through work-related communications; and when commuting to and from work. According to section 3, the employer has the obligation to take all necessary measures to ensure and provide a safe work environment by preventing and protecting from any form of harassment through relevant sanctions (section 3(1)(2)). The Committee further observes that section 4 requires enterprises to form an internal committee competent to deal with such cases and sets a limit of five working days during which the committee investigates the reported cases and take the appropriate decision whether to refer it or not to the competent authorities (police officers). An act of harassment will result in a five-day salary cut each month for two months. In the case of sexual harassment, the harasser will be immediately suspended without monetary compensation or reward. Disciplinary measures shall not prejudice the right of the victim to submit a complaint to the competent authorities (section 4(8) of the Regulations). Pursuant to section 6 of the Anti-Harassment Act, the penalty for a harassment offence ranges from imprisonment of up to five years and/or a fine. The Government further indicates that section 13 of the Labour Law requires every employer to prepare and prominently display internal work regulations in accordance with the model prepared by the Ministry. The Committee also takes note of the Guide on Workplace Ethics. Furthermore, the Government indicates that a number of channels have been provided for the receipt of harassment complaints, including: (1) the unified call centre (19911) available around the clock in several languages; and (2) the “Monitoring Together” (Ma3an lil Rasd) an electronic platform that enables individuals – citizens and residents – to submit online complaints. The Committee also notes that Ministerial Resolution No. 178743 of 1440 Hegire (2018) updated the table of violations and penalties to the Labour Law. The revised table provides for instance, that any failure by the enterprise to establish a committee to investigate cases of misbehaviour conduct at the workplace is punishable with a fine of minimum 20,000 Saudi riyals (SAR) (USD5,300).

With regard to public sector employees, the Committee takes note of the implementing regulations for human resources in the civil service issued by Ministerial Decision No. 1550 of 1440 Hegire (2018) as well the Council of Ministers Decision No. 555 of 1437 Hegire (2016) approving the Code of conduct in the Public sector, defining general rules of ethics and conduct which prohibits sexual harassment as well as general reporting procedures. The Committee notes that the Government has taken a number of measures to raise awareness on the provisions of the Anti-Harassment Act, including the launch in 2021 by the Human Rights Commission of a specialized group and a unified call centre (unified number 19922), that aims to provide support, in the form of psychological counselling and educational, social and legal guidance, to victims of harassment and their families. According to the Government, during the current year, the Ministry has received 57 complaints relating to misbehaviour acts in general, none of which related to sexual harassment. In light of the limited number of infringements identified, the Committee recalls that the absence or a low number of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist. Rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanisms and means of redress, or fear of reprisals (see the General Survey on the fundamental Conventions, 2012, paragraph 790). While taking due note of the different legislative measures mentioned above, the Committee asks the Government to take proactive actions to give effect to these measures by: (i) increasing awareness about sexual harassment, particularly its underlying causes such as gender stereotypes; and (ii) addressing the causes for underreporting, such as the difficulty to access complaint mechanisms and the fear of reprisals. While noting the establishment of a range of accessible complaint mechanisms to combat sexual harassment in the workplace, the Committee asks the Government to clarify the procedure established for examining complaints of sexual harassment at work, and specifically the provisions dealing with the burden of proof and the possibility for victims to obtain reinstatement and compensation. Please also provide information on the practical application of section 5 of the Anti-Harassment Act, including relevant administrative or judicial decisions handed down and their outcome.

Discrimination based on race, colour and national extraction. Migrant domestic workers. In its previous comments, the Committee asked the Government to: (1) provide details on the procedure of transfer of services and its impact on the employment relationship; (2) take steps to ensure that migrant domestic workers are provided with effective protection against discrimination on all the grounds set out in the Convention; (3) provide information on any cases of discrimination or abuse dealt with by the joint committees and their outcomes; and (4) provide information on its continued cooperation with countries of origin towards the full and effective implementation of bilateral agreements regarding domestic workers. The Committee recalls that migrant domestic workers are covered by Regulation No. 310 of 2014 and the Standard Employment Contract. They may terminate the employment contract by giving a written notice of 30 days. Moreover, under Ministerial Decision No. 605 of 12 February 2017 on the procedures for the transfer of migrant domestic workers, these workers may transfer to a new employer without the employer’s consent for a number of reasons, including for non-payment of wages for three consecutive or isolated months or non-respect of the fundamental obligations agreed by both parties. The Committee notes also the Government’s indication in its report that the Ministry of Human Resources and Social Development holds, on a regular basis, technical meetings with officials and technical personnel in labour-sending States to follow up on the implementation of bilateral agreements signed to regulate the recruitment process. According to the Government, complaints are referred to a committee for amicable resolution within five days. If the matter is not resolved, the committee takes a decision within ten days. It is possible to appeal against this decision to the Labour Court electronically. The Committee takes notes of the details provided on the procedure of transfer of services. Noting that the report is silent on the other points, the Committee asks the Government to provide information on: (i) the impact of the transfer of services on the employment relationship, including any changes in the conditions of work (tasks to be performed, salary, working time, etc.); (ii) the number and nature of transfers of services occurring each year; (iii) the number of migrant domestic workers who have submitted complaints against their employers regarding discrimination and abuse, and the outcome of the cases, indicating whether they have requested and been granted a change of workplace; and (iv) the initiatives taken to raise awareness of migrant domestic workers on their rights.

Articles 1(1)(b) and 2. Promoting employment of persons with disabilities. In its previous comments, the Committee asked the Government to provide information on: (1) the implementation of the “Tawafuq” and “Mowaamah” programmes, which aim to promote equal opportunities and treatment for workers with disabilities; (2) the adoption of the National Strategy for Persons with Disabilities with respect to employment and occupation, including education and vocational training; and (3) the number of workers with disabilities employed pursuant to section 28 of the Labour Law and examples of specific measures taken by employers for the accommodation of such workers. The Committee notes the Government’s indication that, in 2020, out of a total of 99,288 employees with disabilities, 22,691 were employed in the civil service sector; 72,505 in the private sector; and 4,092 were beneficiaries of the “Tawafuq” programme. According to the Government, more than 1,300 companies had obtained a “Mowaamah” certificate for best practice to create an inclusive and supportive work environment for persons with disabilities at the end of the first quarter of 2021. In addition, more than 35 electronic training sessions on the national e-training platform “Doroob” were modified to match the capabilities of persons with disabilities; sign language translations of these courses were provided and appropriate tools added in order to facilitate access. The Committee notes that the Government’s report is silent on the adoption of the National Strategy for Persons with Disabilities. The Committee asks the Government to provide information on the employment rates of persons with disabilities, disaggregated by sex, occupation and economic sector, as well as on any complaints regarding employment discrimination based on disability brought before the competent authorities and their outcomes, including the remedies granted. Noting that the report is silent on this point, the Committee asks again the Government to provide information on any progress made or obstacles encountered in the adoption of the National Strategy for Persons with Disabilities

Monitoring and enforcement. The Committee notes the Government’s reference to section 43 of Ministerial Decision No. 178743 of 1440 Hegire (2018), according to which any employer who commits discrimination shall be punished by a fine of SAR20,000 (USD5,300) (amount multiplied in case of repeated infringements). Seven discrimination cases, based on section 3 of the Labour Law, were detected in 2021 during monitoring patrols by labour inspectors. During 2021, the Ministry offered 38 training programmes and trained more than 970 inspectors on the issue of discrimination. The Committee asks the Government to provide information disaggregated by sex and sectors of activity on the number, nature and outcomes of cases of discrimination in employment and occupation examined by the labour inspectorate and the Courts. In the absence of information in this regard, the Government is asked to provide information on the activities of the women’s support offices in personal status courts, indicating the number and nature of the cases examined.