Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate employment. The Committee notes the ILO technical assistance mission in February 2010, during which a tripartite workshop was held on report writing on international labour standards, and issues relating to the application of the Conventions were discussed, including the situation of foreign domestic workers. Referring to its earlier comments, in which the Committee expressed concern about the situation of domestic workers, the Committee notes that the new Labour Code (Law No. 6, 2010) excludes domestic workers from its scope (section 5). It notes, however, that the same section of the new Labour Code authorizes the competent minister to issue a decision concerning this category of workers specifying the rules governing the relationship between domestic workers and their employers. The Committee also notes Order No. 568 of 29 May 2005, issued by the Council of Ministers, supplied by the Government with its report, which provides for the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, as well as the information concerning the activities of this permanent committee. The Committee further notes sample copies of employment contracts concluded with domestic workers, in accordance with the model contract issued by the Ministry of Interior, communicated by the Government. Regarding the right of domestic workers to terminate employment, the Committee notes that, according to section 1 of Part V of the model contract, domestic workers can terminate employment by notifying their employer two months before the end of the contract. The Government also states, as regards a possibility for domestic workers to have recourse to courts, that these workers may initiate legal proceedings without any restrictions.

While noting this information, the Committee trusts that the Ministerial Decision specifying the rules governing the relationship between domestic workers and their employers, to which reference is made in the new Labour Code, will be issued in the near future, and that it will provide adequate protection for domestic workers as regards their freedom to terminate employment. The Committee asks the Government to communicate a copy of the Ministerial Decision, as soon as it is promulgated.

Articles 1(1), 2(1) and 25. Trafficking in persons. In its previous comments, the Committee requested the Government to indicate measures taken or envisaged, both in legislation and in practice, to prevent, suppress and punish trafficking in persons, including victim protection measures, as well as any intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons. The Committee notes the Government’s indication in its report that a bill on combating trafficking in persons and the smuggling of migrants has been submitted to the Council of Ministers for its adoption before its referral to the Majlis El Ummah (Parliament). The Government indicates that the bill includes a definition of trafficking in persons and the provisions imposing penalties on perpetrators, as well as the provisions relating to the protection of victims of human trafficking. Furthermore, the bill provides for the setting up of a national committee for combating human trafficking, which will formulate policies and programmes in this field.

The Committee hopes that the bill on combating trafficking in persons will be passed in the near future and that the Government will provide a copy of the new anti-trafficking law, once it has been adopted. Please provide information on the activities of the national committee for combating human trafficking referred to above, in particular on the relevant policies and programmes, as well as the information on the application in practice of sections 138 and 173 of the Penal Code, to which the Government refers in its report in relation to the punishment of human trafficking.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. In its earlier comments, the Committee observed that the national legislation does not contain any specific provisions under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Government has referred in this regard to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.

The Committee takes note of the Government’s view expressed in its report that the above penal provisions are sufficient to hinder a person from exacting labour from another person. The Government indicates, however, that the information on the application of these provisions in practice is not currently available.

The Committee recalls, referring to the explanations in paragraphs 135–140 of its 2007 General Survey on the eradication of forced labour that, in stipulating that the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and that States must ensure that the penalties imposed by law are really adequate and strictly enforced, Article 25 provides a repressive component which ultimately plays a preventive role, since effective punishment of perpetrators encourages victims to lodge complaints and has a dissuasive effect. The Committee therefore trusts that the necessary measures will be taken (e.g. on the occasion of the possible future revision of the Penal Code) in order to give full effect to Article 25 of the Convention. Pending the adoption of such measures, the Committee again requests the Government to communicate information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed, as soon as such information becomes available.

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