Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Emirats arabes unis (Ratification: 2001)

Autre commentaire sur C111

Observation

Demande directe

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National policy on equality of opportunity and treatment. The Committee notes that according to 2010 mid-year estimates of the National Bureau of Statistics, 88.5 per cent of the total population is of foreign nationality (7,316,073 non-nationals (5,682,711 men and 1,633,362 women) and 947,997 nationals (479,109 men and 468,888 women)). In 2009, the economic activity rate of non-nationals was 79 per cent compared to 45 per cent for nationals. The Committee therefore considers it essential that addressing discrimination in employment and occupation against both national and foreign workers on at least all the grounds set out in Article 1(1)(a) of the Convention be an important component of a national equality policy. The Committee reiterates its requests to the Government to provide information on all measures taken in accordance with Article 2 of the Convention to declare and pursue a national policy to promote equality of opportunity and treatment with a view to eliminating discrimination not only against nationals but also non-nationals with respect to race, colour, national extraction, sex, religion, political opinion and social origin, and to provide specific information on all the steps taken in this regard.

Legislation. The Committee had previously noted that the constitutional provisions concerning equality, concern citizens without distinction as to race, nationality, religious belief or social status (article 25) and do not apply to acts of discrimination by private employers. The Committee notes that proposed amendments to Federal Law No. 8/1980 on the employment relationship, which covers nationals and non-nationals but which excludes domestic workers, insert a new section 3 providing that “any discrimination which is likely to weaken equal opportunity, or jeopardize equality for persons who have equal experience and qualifications in accessing jobs, retaining such jobs, or in their enjoyment of their rights shall be prohibited”. Draft section 33 has a similar provision specifically covering women and adds that “for the purpose of this section, dismissal of a female worker on the grounds of change in her family status, or because of pregnancy, childbirth or maternity shall be discrimination which is prohibited”. While welcoming the Government’s commitment to prohibit more explicitly discrimination in the labour legislation, particularly against women, the Committee notes that the scope of protection of the draft provisions is limited to workers who have equal experience and qualifications and only covers some aspects of employment and occupation. Considering the high number of foreign workers, the Committee is of the view that, as part of the national equality policy, the need arises to adopt more comprehensive provisions defining and explicitly prohibiting discrimination on at least all the grounds set out in the Convention and in all aspects of employment and occupation in order to ensure the full application of the Convention to all workers. The Committee therefore asks the Government to make every effort to ensure that the new Act on employment relationships includes a specific provision defining and expressly prohibiting both direct and indirect discrimination on all the grounds set out in Article 1(1)(a) of the Convention covering all workers and all aspects of employment and occupation. Please continue to provide information on the revision process of Federal Law No. 8 of 1980. Noting the Government’s indication that the “draft Federal Act on the category of domestic help workforce” was to be promulgated in the course of 2011, the Committee hopes that this Act will contain provisions protecting domestic workers from discrimination in accordance with the Convention, and asks the Government to provide information in this regard.

Sexual harassment. The Committee previously raised concerns regarding the limited effect of criminal law and the proposed amendments to Federal Law No. 8/1980 on preventing and addressing sexual harassment, and the particular vulnerability of domestic workers. The Committee notes that the Government again refers to sections 354–359 of the Penal Code No. 34/2005 and section 121 of Law No. 8/1980, and indicates that most complaints of sexual harassment are submitted to the Ministry of Interior as it is responsible for enforcement of the Penal Code. The Government also states that the General Women’s Federation (GWF) set up a portal on complaints on its website accessible to women of all nationalities and language, but that neither the GWF nor the Ministry of Labour have received complaints regarding work-related sexual harassment. The Committee further notes that domestic workers can submit complaints on sexual harassment to the Human Rights Department and the Department of Workers’ Conflict of the Ministry of Interior. While noting the efforts to support women to submit complaints on sexual harassment under the Penal Code, the Committee recalls that sexual harassment in employment and occupation covers a much broader range of behaviour and is not limited to crimes of a sexual nature and practices. Recalling the Government’s previously stated intention to consider a more comprehensive prohibition taking into account the elements of the Committee’s general observation of 2002, the Committee asks the Government to make additional efforts to adopt legislation on sexual harassment defining and explicitly prohibiting both quid pro quo and hostile environment harassment in employment and occupation, providing for effective sanctions and remedies, and permitting all workers, including domestic workers, to lodge complaints, without being stigmatized, through easily accessible dispute resolution processes. The Committee also hopes that the opportunity will be taken to include such a provision in the draft legislation on domestic workers, and requests the Government to provide information on any steps taken in this regard.

Restrictions on women’s employment. Regarding the administrative procedure requiring women to obtain their husband’s permission to take up work, the Committee notes the Government’s statement that Ministerial Order No. 3 of 2009 on work permits for persons sponsored by their parents annuls all previous circulars and instructions, and that the husband’s consent to work is no longer necessary. The Government also states that no cases have been received of women being unable to work because of their husband’s refusal. The Committee further notes that the Government provides no reply to its request to review sections 28 and 29 of Law No. 8/1980 (night work, and jobs that are dangerous, arduous or detrimental to health or morals of women) with a view to ensuring that protective measures are strictly limited to maternity protection. With respect to night work, the Committee refers to its 2008 direct request on the Night Work (Women) Convention (Revised), 1948 (No. 89). The Committee asks the Government in revising Federal Law No. 8/1980, to ensure that protective measures are limited to protecting maternity and that those aimed at protecting women because of their sex or gender, based on stereotypical assumptions, will be repealed. The Committee further requests the Government to provide a copy of Ministerial Order No. 3/2009 on work permits and to monitor closely the extent to which women continue to be required in practice to obtain permission from their husbands to take up work.

Equality of opportunity and treatment between men and women. The Committee recalls the occupational segregation by gender and the concentration of women in occupations with few opportunities for advancement and their low representation in management positions. The Committee notes that according to 2009 estimates of the National Bureau of Statistics, the economic activity rate was 42.1 per cent for women and 88.9 per cent for men; men’s and women’s employment rates were respectively 86.8 per cent 37.5 per cent in 2009. The Government indicates that the low percentage of women of working age is due to the low number of women migrant workers as compared to male migrant workers and because a large percentage (around 40 per cent) of the jobs available in the labour market are concentrated in the construction sector and in occupations requiring low-skilled labour in infrastructure and real estate development, which do not attract women. The Government also states that some occupations require to be carried out by one sex in view of the nature of the society, especially when the job requires physical contact, such as security and police officers and jobs in hairdressing and beautician shops. Noting the Government’s statement that such occupations “are accepted by women” and their participation rates are on the rise, the Committee recalls the importance of avoiding stereotyped assumptions in training and employment with respect to women’s aspirations, suitability and capability for certain jobs as this will limit their employment opportunities. It also recalls that the exception contained in Article 1(2) of the Convention must be interpreted restrictively and that any limitation must be required by the characteristics of the particular job, in proportion to the inherent requirements. The Committee asks the Government to provide information on the measures taken to address stereotyped assumptions regarding women’s aspirations, capability and suitability with respect to certain occupations, and their impact on increasing employment opportunities for women. The Committee also asks the Government to ensure that exclusions or preferences where the sex of the worker constitutes an inherent requirement of the job, are interpreted restrictively, and to provide information on the measures taken in this regard.

The Committee welcomes the various measures taken by the Government to raise awareness on women’s rights, promote gender equality and to improve women’s opportunities in the labour market. It notes in particular the Programme for Women and Technology, launched in 2006, and the Employment Office of National Women Graduates, set up at the GFW to help female graduates to find work opportunities in the public and private sectors. It also notes the “Emirates Programme for Women leaders” (2009) of the Dubai Foundation for Women, the launching of a National Child Care Project in the workplace in implementation of the Ministerial decision on child care nurseries for female workers in ministries, public bodies and institutions and government departments. It also notes the setting up of the Business Women Council (BWC) and its activities in promoting women in leadership. The Committee notes that according to 2010 statistics of the BWC the number of businesswomen accounts for 4.5 per cent, and that the share of Emirati women in small enterprises is about 44 per cent and 23 per cent for medium-sized enterprises. The Committee asks the Government to continue to provide information on the measures taken to promote equality between men and women and women’s opportunities in the labour market at the federal level and in the different emirates of the State. Please provide information, including statistics on the concrete results achieved, including by the Employment Office of National Women Graduates, the Programme for Women in Technology, and the National Child Care Project. The Government is also requested to continue to provide up-to-date statistical data, disaggregated by sex, on the employment of women and men (nationals and non-nationals) in the various occupations and sectors of the economy.

Public sector. The Committee notes that pursuant to section 6(2) and (5) of the Dubai Human Resources Management Law of 2006 departments must promote a healthy and safe working environment which provides equal opportunities and which is free from harassment and discrimination. The Committee also notes the Government’s intention to establish a committee for working women in the federal Government in cooperation with women’s bodies and institutions responsible for women’s affairs in the Government to support human resources policies with regard to women’s employment. It notes from the Government’s report that in the Judicial Department women hold positions for the first time of judge, prosecutor and assistant public prosecutor and marriage clerk. The Government further states that the Federal Law No. 11/2008 on Human Resources in the Federal Government, and its implementing regulations promulgated by the Council of Ministers Order No. 13 of 2010 do not discriminate between men and women in the public service and that the legislative texts are equally applied to both men and women without any distinction. The Committee asks the Government to provide information on the practical application of sections 6(2) and (5) of the Dubai Human Resources Management Law of 2006, and indicate whether similar legislation has been adopted by other member Emirates of the State. The Committee also asks the Government to provide detailed information on the activities of the committee for working women in the Federal Government, and the results achieved in promoting a better gender balance in all areas of the civil service, including in those in which men have traditionally been in the majority, and in higher level positions. Please provide up-to-date statistics, disaggregated by sex, on employment of nationals and non-nationals in all posts of the civil service, as well as an indication of the number of women holding posts in the judicial department and their responsibilities. The Committee would also be grateful to receive a copy of Federal Law No. 11/2008 on Human Resources in the Federal Government, and information on the measures taken to ensure non discrimination and equality of opportunity and treatment in respect of all aspects of public sector employment in respect of the other grounds set out in Article 1(1)(a) of the Convention.

Migrant workers. The Committee had noted previously the deplorable working and living conditions of low-skilled male migrant workers (mostly originating from India, Pakistan and Bangladesh), especially on construction sites, and requested information on all measures taken, and the results achieved, to ensure that these workers are effectively protected against discrimination with respect to their conditions of work, and to eliminate any discriminatory practices against them on the grounds set out in the Convention. The Committee notes the Government’s indication that a strategy and work plan have been set up aimed at addressing the difficult working conditions of foreign workers, which includes legislative measures with respect to employers’ obligations, wide-ranging inspection campaigns, and awareness raising. The Government indicates that the implementation of the Wage Protection System (Minister of Labour Decision No. 788 of 2009) resulted in more than 2.1 million workers receiving their salaries. The Government also refers to a Manual on general standards for workers’ accommodation and a Guidance Manual for workers in seven languages explaining the duties and rights of workers. The Committee requests the Government to provide more specific information on the implementation strategy and work plan to address the difficult conditions of foreign workers, including the manner in which it is addressing discriminatory practices against these workers based on the grounds set out in the Convention. Please continue to provide information on all measures taken, and the results achieved, to ensure that foreign workers, especially the least skilled workers employed on construction sites, are effectively protected against discrimination with respect to their conditions of work, and to eliminate any discriminatory practices against them on the grounds set out in the Convention, particularly race, colour and national extraction.

The Committee previously noted that migrant domestic workers come under the jurisdiction of the Ministry of Interior and that complaints submitted by these workers to the Ministry’s Nationality and Residency Department mostly concerned unpaid wages, followed by “lack of desire to work” and “issues of reconciliation”; other complaints concerned withholding of passports, physical harm and sexual harassment. Complaints submitted by employers mostly concerned absence from or cessation of work without justified reasons (absconding workers). A high number of the complaints had been resolved through measures such as “sponsored to leave”, “friendly conciliation” and “annulment” and “departure”. Noting, however, from the Government’s explanations that, apart from “friendly conciliation”, these measures concern cases where the foreign worker or sponsored person has committed a violation of the legislation, the Committee questions the effectiveness of the dispute resolution mechanisms and the appropriateness of the remedies available to domestic workers who submit complaints regarding discrimination, including sexual harassment, with respect to their conditions of work. The Committee draws the attention of the Government to the Domestic Workers Convention, 2011 (No. 189), and its accompanying Recommendation No. 201. The Committee requests the Government to continue to provide information regarding the number and nature of claims of discrimination in employment and occupation brought by migrant domestic workers to the Department of Human Rights or the Nationality and Residence Department and how they have been addressed. Please also provide information on the number, nature and outcome of complaints submitted by domestic workers regarding violations of the standard employment contract. Please also provide information on any other practical measures taken to protect women migrant workers, especially those employed in private households, against discriminatory practices particularly with respect to recruitment and conditions of work, based on race, colour, national extraction and sex.

Employment system of foreign workers. The Committee notes that Federal Law No. 6/1973 concerning the Entry and Residence of Expatriates and its bylaws require a non-national to be sponsored by his or her employer in order to obtain an employment visa and work permit. The ability to change jobs is therefore linked to the sponsorship system. The Committee understands that recent legislative measures, including Cabinet Decision No. 25 of 2010, have improved flexibility for foreign workers to move from one employer to another. The Committee notes, for example, the Government’s indication that in the event of failure by the employer to pay wages for two consecutive months, a worker has the right to transfer sponsorship to another employer without notifying the previous employer. The Committee also notes, however, that pursuant to Ministerial Order No. 721 of 2006 employees who absent themselves from work for more than seven consecutive days will be listed as “absconders” with the Ministry of Labour, if their employers affirm that they are unaware of their whereabouts and there is no legal justification for their absence. Absconding may result in cancellation of the sponsorship of the worker concerned. The Government indicates that Ministerial Order No. 721 of 2006 provides protection against abuse of the procedures by the employer, and that in some circumstances absconding notices may be referred to the labour inspectorate to ascertain the underlying reasons preventing workers from coming to work. The Government provides a number of reasons why workers, including domestic workers, leave their sponsors, including: low wages or differences between the wage received and wage promised by the employment agency; late payment of wages, and in some cases mistreatment by the employer and failure to provide suitable working conditions. Other reasons include the worker’s desire to take up irregular employment or to improve his or her financial situation by accepting extra work from another employer. The Government also refers to organizations providing shelter to female absconding workers and helping them find part-time work in exchange for a percentage of their earnings. While noting that the absconding notice will not be registered where the worker has filed a labour complaint or lawsuit, the Committee is concerned that migrant workers suffering such treatment may refrain from bringing complaints regarding discrimination and abuse out of fear of retaliation by the employer, or because of uncertainty as to whether this would lead to a change of workplace or to deportation. The Committee draws the Government’s attention to the importance of ensuring that under the employment system all foreign workers enjoy protection against discrimination as provided by the Convention. Providing appropriate flexibility for all workers to change employers may assist in reducing foreign workers’ vulnerability to discrimination and abuse. The Committee asks the Government to provide up-to-date information on the legislative framework regulating the employment of foreign workers, including domestic workers, indicating the specific provisions allowing foreign workers to change jobs and under which conditions, especially in cases of discrimination and abuse. Please provide copies of the relevant texts, including Cabinet Decision No. 26 of 2010 and Ministerial Order No. 721 of 2006, as well as any other implementing decisions, resolutions and ministerial orders, with an indication of the categories of foreign workers covered. Please also provide information on the number of male and female workers and the sectors or occupations in which they are employed, who have submitted complaints against their employers or sponsors regarding discrimination and abuse, and the outcome of the cases.

Enforcement and dispute resolution. The Committee notes the role of the Human Rights Department of the Ministry of Interior in examining complaints and appeals, including from domestic workers. It notes that the Department for Workers’ Guidance (Ministerial Order No. 551 of 17 May 2009) is responsible for raising awareness on equality and non-discrimination in employment and occupation and on appropriate complaints mechanisms and procedures through field visits. Workers’ welfare offices have been established for receiving complaints and inquiries, monitoring negative labour trends and raising awareness of workers on the labour legislation, as well as undertaking field visits to owners of enterprises. Other measures mentioned by the Government to improve judicial proceedings and enforcement include the establishment of labour relations offices in labour courts, the Committee for Coordination between the Ministry of Labour and the Judicial Department, the system of judges for preliminary conciliation procedures established in Dubai and the Alternative Dispute Settlement Department in the Judicial Department of Abu Dhabi (Decision No. 14 of 2008). The Committee notes that the number of labour cases settled through the preliminary conciliation procedures in Dubai from March to end of December 2009 totalled 932 out of 2,853 labour cases. Between the 1st of June 2009 and the 31st of May 2010, 19,079 and 24,050 complaints were submitted respectively in 2009 and 2010 with the Labour Disputes Administration. The Committee notes that ninety per cent of the plaintiffs were male workers and that the majority of the complaints concerned wage arrears, termination of contract and legal entitlements. While welcoming the efforts to improve dispute resolution mechanisms and procedures, the Committee requests information on how these have been used by workers to submit specific claims of discrimination in employment and occupation on the grounds of the Convention. Please provide information on the number and nature of the complaints submitted by male and female workers to the Human Rights Department, the Department of Workers’ Guidance, the Labour Disputes Administration and the labour inspection services, as well as the Wages Protection Office and the courts, with particulars of the number of cases dealt with and the penalties imposed and remedies provided. Please also provide information on activities of the Department of Worker’s Guidance and the workers’ welfare offices to promote the principles of the Convention, and on any measures to ensure that those involved in dispute resolution and enforcement, including labour inspectors, labour dispute commissioners, judges and members of the Human Rights and Workers’ Guidance Departments, receive appropriate training regarding non discrimination and equality issues.