Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the communication of the Bahrain Chamber of Commerce and Industry (BCCI) received on 15 September 2009. The Committee asks the Government to respond to the issues raised in the communication.

Legislative developments. The Committee notes from the Government’s report that the draft Labour Code is still under discussion in the National Assembly. In its previous comments, the Committee had expressed the hope that a specific provision would be included in the new Labour Code defining and prohibiting discrimination. The Government had stated in a previous report that the comments made by the Committee had been taken into consideration in the revision process. In the Government’s most recent report, it states that as current customs which have the force of law do not distinguish between men and women in the workplace, an explicit text on the issue is not seen to be necessary. The Committee draws the Government’s attention to the fact that the absence of discriminatory provisions in the legislation is not sufficient to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof, as set out in Article 2 of the Convention. The Committee considers that, given persisting patterns of discrimination in drafting a new Labour Code, it would be regrettable if the opportunity were not taken to clearly define and prohibit direct and indirect discrimination in all aspects of employment and occupation to ensure more effective application of the Convention. The Committee, therefore, strongly urges the Government to take steps to ensure that the new Labour Code includes provisions explicitly defining and prohibiting direct and indirect discrimination, on all the grounds enumerated in Article 1(1)(a) of the Convention, with respect to all aspects of employment and occupation, and covering all workers, including domestic workers, casual workers and agricultural workers. Please provide information on any developments in this regard.

Sex discrimination. Legislation. The Committee previously raised concerns regarding section 63 of the Labour Code, which according to the English translation published by the Ministry of Labour and Social Affairs, provides that “the Minister for Labour and Social Affairs shall make an Order prescribing the occupations and jobs in respect of which an employer may offer alternative employment to a female worker because of her marriage”. The Government merely replies that the Bahraini legislation does not impose any restrictions on women in employment, and that the new Labour Code will grant protective privileges for women. The Committee urges the Government to ensure that the new Labour Code does not discriminate against women by authorizing occupations and jobs to be prescribed in respect of which an employer may offer alternative employment to women because of their marriage. The Committee also hopes that the new Labour Code will strictly limit protective measures for women to maternity protection.

Sex discrimination. Sexual harassment. The Committee notes that the Government had previously indicated that it would take the necessary steps to enact appropriate regulation on sexual harassment. However, in its most recent report, the Government indicates that it considers the existing provisions of the Penal Code punishing rape and sexual assault to provide sufficient protection against sexual harassment. The Committee recalls that sexual harassment is a serious form of sex discrimination, and it is important to take effective measures to tackle not only the most serious forms of sexual harassment that would constitute sexual assault, but the range of conduct in the context of work that should be addressed as sexual harassment. Referring to its 2002 general observation, the Committee draws the Government’s attention to the definition of sexual harassment set out therein. The Committee urges the Government to ensure that the new Labour Code defines and prohibits sexual harassment at work, encompassing both quid pro quo and hostile environment harassment. The Committee also requests the Government to provide information on specific measures taken to prevent and address sexual harassment at the workplace.

Migrant workers. In its previous comments, the Committee raised concerns regarding the vulnerability of migrant workers to abuse and discrimination, particularly women migrant domestic workers. The Committee also drew attention to the fact that this situation is exacerbated by the sponsorship system, making migrant workers dependent on their employers and reluctant to make formal complaints. The Committee notes the Government’s indication that the draft Labour Code will address issues such as hours at work, holidays and bonuses for domestic workers. The Committee also notes that 915 complaints were filed by migrant workers in 2008, compared to 1,070 in 2007. The Government attributes the decrease in the number of complaints to increasing awareness and care by employers, and better monitoring and application of the legislation, and indicates that the majority of complaints involved non-payment of entitlements upon cessation of activity, linked to the financial crisis. The Committee also notes the adoption of Order No. 79 of 16 April 2009, which relates to the procedures governing the transfer of a foreign worker from one employer to another. Section 2 of the Order states that the foreign worker shall have the right to transfer to work with another employer without violating the rights of an employer by virtue of the provisions of the law or the text of the labour contract concluded between the parties. The Committee also notes that the Ministry of Labour and Social Affairs, in collaboration with the International Labour Office, has carried out a study on the alternatives to the sponsorship system, and is in the process of considering this study.

The Committee would like to underline the importance of ensuring effective legislative protection, and the promotion and enforcement of such legislation, to ensure that migrant workers are not subject to discrimination and abuse. The Committee also considers that providing for appropriate flexibility for migrant workers to change their workplace assists in avoiding situations in which they become particularly vulnerable to discrimination and abuse. The Committee recalls the particular vulnerability of migrant domestic workers to multiple forms of discrimination based on race, colour, religion or sex due to the individual employment relationship, lack of legislative protection, stereotyped thinking about gender roles and undervaluing of this type of employment. Recalling the large number of migrant workers in the country, the Committee urges the Government to take steps to ensure that migrant workers have effective legal protection against discrimination in employment and occupation, in particular based on race, colour, religion or sex. The Committee also hopes that the provisions on domestic workers in the new Labour Code will provide effective rights and protection, including addressing the under-valuation and disadvantaged position of these workers. The Committee also requests information on the status of the follow-up to the study on the alternatives to the sponsorship system as well as information on any other studies dealing with the situation of migrant workers. The Committee also requests the Government to provide information on the following:

(i)    the number and nature of complaints filed by migrant workers or detected by labour inspectors, in particular relating to domestic workers, the sanctions imposed and the remedies provided;

(ii)   the number of migrant workers that have successfully applied to transfer to another employer pursuant to Order No. 79, indicating the reasons for granting such a change; and

(iii) whether and to what extent the labour contract between the migrant worker and the employer can limit the right of the worker to transfer to another employer pursuant to Order No. 79.

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