Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the comments by the Lanka Jathika Estate Workers’ Union (LJEWU) attached to the Government’s report, and the comments from the Ceylon Workers’ Congress (CWC) received on 29 August 2008.

Legislative protection against discrimination in employment and occupation. The Committee recalls its previous comments regarding the lack of national legislation explicitly incorporating a prohibition of direct and indirect discrimination in employment and occupation on the grounds enumerated in Article 1(1)(a) of the Convention. The Committee notes that the Government, in its reply, continues to refer to the constitutional provisions guaranteeing equality before the law and generally protecting citizens against discrimination on the grounds of “race, religion, language, caste, sex, political opinion, place of birth or any of such grounds” (article 12), guaranteeing the freedom to engage in employment and occupation (article 14) and guaranteeing the right of every person to apply to the Supreme Court in respect of violations of these rights by the State (article 17). However, the Committee notes that the Constitutional guarantees against discrimination only appear to cover citizens and do not prohibit discrimination on the grounds of colour or national extraction. In this respect, the Committee notes the Grant of Citizenship to Persons of Indian Origin Act, No. 35/2003, and the Act to Repeal the Indian Immigrant Labour Ordinance No. 23/1993 (Chapter 132), No. 18/2006, but recalls that the Convention does not make any distinction between citizens and non-citizens as to the protection against discrimination. The Committee therefore considers that, in addition to these constitutional guarantees, the inclusion of non-discrimination and equality provisions into the labour or other relevant legislation may be required to ensure that all men and women, citizens and non-citizens, are effectively protected from discrimination in employment and occupation on all the grounds covered by the Convention, including race, colour, sex, religion, political opinion, national extraction or social origin. The Committee also recalls that the adoption of comprehensive legislation has proven to be one of the most effective means to address discrimination in employment and occupation. The Committee urges the Government to make every effort to introduce in the national legislation provisions ensuring that all men and women, citizens and non-citizens, are effectively protected from discrimination in all aspects of employment and occupation on all the grounds covered by the Convention. Awaiting further steps being taken to adopt any such legislation, please provide information on the concrete measures taken to protect, in practice, citizens and non-citizens against discrimination on the basis of race, colour, national extraction, religion, political opinion and social origin. Please also provide information on the number and nature of employment discrimination cases that have been handled by the Supreme Court pursuant to articles 12(1) and 17 of the Constitution, as well as how persons can obtain redress with respect to discrimination by private employers on the grounds enumerated in Article1(1)(a) of the Convention.

Non-discrimination and equality of opportunity between men and women. The Committee recalls its previous observation concerning the under-representation of women in many areas of employment and their concentration in self-employment and unskilled work, often in the informal economy, as well as the high incidence of sexual harassment in the private sector, especially on the tea plantations, and the poor working conditions in the export processing zones (EPZs). The Committee also recalls that the Government, together with the workers’ and employers’ organizations, had taken some measures that addressed some of these issues, but that further efforts were needed to promote equality of opportunity of men and women in employment and occupation. The Committee notes the comments by the LJEWU that some employers are reluctant to employ women because of the need for special requirements such as maternity leave and nursing intervals, and that sexual harassment is not only evident in the tea plantations but also in other occupational sectors. However, according to the LJEWU, the Ministry of Labour does not have the legal mandate to deal with the issue and incidences of sexual harassment are being referred to the police. Penal provisions have recently been adopted on sexual harassment at work and in public places. The Committee also notes that the “Women’s Rights Bill” has not yet been finalized. The Committee further notes from the statistical data for 2005 provided by the Government that between 1991 and 2005 women’s participation in private sector employment increased by 5.9 per cent, particularly in the professional, technical and related occupations and the skilled and semi-skilled occupations where their participation increased by 14.9 and 10.5 per cent, respectively. However, women continue to be over-represented in the skilled and semi-skilled (59 per cent) and unskilled (53.4 per cent) occupations; however in the occupational group of “foreman and supervisor” their participation decreased from 29.7 per cent in 1991 to 23.8 per cent in 2005.

The Committee notes from the Government’s report that the Gender Bureau of the Ministry of Labour Relations and Manpower, the Women’s and Children’s Affairs Division and the National Institute of Labour Studies (NILS) have provided training and awareness-raising programmes on gender mainstreaming for the working population. The Committee further notes with interest that workers’ and employer’s organizations have taken certain measures to address sexual harassment in the workplace. The Ceylon Chamber of Commerce and the Employers’ Federation of Ceylon (EFC) have launched the “Code of Conduct and Procedures to address Sexual Harassment in the Workplace: a Guideline”, and the collective agreement between the CWC and the Employers’ Federation of Ceylon covering the plantation sector introduced a clause discouraging sexual harassment and providing for female supervisors in tea harvest areas. However, the Committee remains concerned about the fact that legislative protection against sexual harassment is mainly being approached in the context of criminal law. Sex-related offences established under the penal law generally cover severe forms of sexual harassment and may not be adequate to prevent and address many other forms of sexual harassment at work, whether quid pro quo or hostile working environment harassment, as identified in the Committee’s general observation of 2002. While welcoming the initiatives to promote training and awareness on gender mainstreaming, the Committee has yet to observe their real impact, as well as of those previously taken by the Government to promote gender equality in employment and occupation. In order to be able to assess more fully the progress being made in the application of the Convention, the Committee asks the Government to provide the following information:

(i)    information (e.g. surveys, studies, as well as statistics disaggregated by sex) demonstrating the impact of the measures taken to promote women’s upward mobility and access to a wider range of jobs and occupations;

(ii)   the measures taken, and their impact to improve the working conditions in the EPZs as well as to address the employment situation of women in the informal economy;

(iii) the steps taken to include provisions prohibiting and preventing sexual harassment in national labour law;

(iv)  any other measures taken to effectively address discrimination against women and promote their equality of treatment and opportunities in employment and occupation.

The Committee also reiterates its request for information on the results of the legislative research commissioned by the National Committee on Women with respect to the laws identified as being detrimental to women in the area of employment and occupation.

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