Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - France (Ratification: 1981)

Autre commentaire sur C111

Observation

Demande directe

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Article 1(1)(a) of the Convention. Grounds of discrimination. Social origin. The Committee recalls that the Labour Code prohibits discrimination on the basis of origin, sex, lifestyle, sexual orientation or identity, age, family situation or pregnancy, genetic characteristics, membership or not, real or supposed, to an ethnic group, nation or race, political opinion, trade union or mutual association activities, religious convictions, physical appearance, family name and state of health or disability (section 1132-1). The Committee notes that social origin is not included among the grounds of discrimination that are prohibited by law, as the term “origin” in section 1132-1 refers to “national extraction” within the meaning of the Convention. In this respect, the Committee notes that in Opinion No. 2011-121 of 18 April 2011, the High Authority to Combat Discrimination and Promote Equality (HALDE) recommended that the Government should “engage in reflection on the inclusion of the criterion of social origin in the list of prohibited criteria”. With a view to extending the protection of workers against discrimination and giving full effect to the Convention, the Committee asks the Government to provide information on any steps taken to introduce “social origin” in the list of grounds of discrimination prohibited by the Labour Code.

Discrimination on the basis of sex. Sexual harassment. In its previous comments, the Committee emphasized the lack of legal clarity of the measures to combat sexual harassment at work and requested the Government to examine the possibility of amending the definition of sexual harassment in the Labour Code so as to include not only quid pro quo sexual harassment, but also a hostile working environment. The Committee notes the decision of the Constitutional Council of 5 May 2012 to repeal the provisions of section 222-33 of the Penal Code respecting the offence of sexual harassment. The Committee also notes the adoption of Act No. 2012-954 of 6 August 2012 respecting sexual harassment to amend, among other legislation, the Penal Code (including section 222-33), the Labour Code (sections L1153-1 to L1153-6) and Act No. 83-634 of 3 July 1983 determining the rights and duties of public employees, which defines sexual harassment as being “repeated phrases or behaviour with a sexual connotation which either violate dignity in view of their degrading or humiliating nature, or create an intimidating, hostile or offensive situation”, and considers as sexual harassment “any form of serious pressure, even if not repeated, with the real or apparent aim of obtaining an act of a sexual nature, whether for the person exerting the pressure or for a third party”. The Committee welcomes the fact that the new definition of sexual harassment included in the Labour Code covers both quid pro quo and hostile working environment sexual harassment. However, it notes that the acts covered have to be “repeated” or, if they are not repeated, they must consist of “serious pressure”, and it considers that these provisions could have the effect of limiting the protection of workers against sexual harassment. The Committee requests the Government to provide information on the application in practice of the new provisions of the Labour Code and the Penal Code respecting sexual harassment at work, including information on the cases dealt with by the Office of the Rights Ombud, labour inspectors and the courts. It encourages the Government to strengthen awareness-raising activities with a view to preventing and eliminating sexual harassment at work and informing men and women workers, employers and their organizations of their respective rights and duties in this regard. Furthermore, with reference to its previous comments on the application of the Convention in French Guiana and Réunion, the Committee once again requests the Government to provide specific information on any measures adopted to prevent or eliminate sexual harassment at work in the overseas departments.

Discrimination on grounds of race, colour and national extraction. Travellers. The Committee notes the Government’s indication that the employment policy and its measures are not targeted at a specific ethnic community, but are intended to respond to the needs of individuals who are not close to the labour market or who are experiencing difficulties in gaining access to it. It also notes the report published in October 2012 by the Audit Court on the reception and support provided for travellers emphasizes the social difficulties with which they are confronted, including the absence of schooling for their children and the occasional nature of their economic activities, as well as direct discrimination in recruitment and in enterprises, and refusal of registration with the employment services (Pôle Emploi). The Committee notes that the issue of the obstacles encountered by travellers with travel permits (cards or documents) in registering with the Pôle Emploi was addressed by the HALDE in Opinion No. 2011-118 of 18 April 2011, which recommended the inclusion of the travel permit in the list of documents that can be used by jobseekers to prove their identity, and therefore to register with the Pôle Emploi. The Committee also notes that further to a decision of the Constitutional Council of 5 October 2012, the “travel card”, which was to be held by each individual and had to be approved every three months by the administrative authorities, has been abolished; the “travel document”, a distinct document held by travellers, is still valid. Noting that the situation of travellers in relation to access to education, vocational training, employment and the various occupations does not appear to have improved, the Committee encourages the Government to take tangible measures specifically designed to promote equality of opportunity and treatment for travellers in employment and occupation, including measures to improve their skills levels, recognize and validate their vocational skills and facilitate their registration with the employment services. Please provide information on the measures adopted for this purpose and the results achieved.

Roma. The Committee notes that the access to employment of nationals of Bulgaria and Romania, from where the majority of members of the Roma community living in France originate, has been extended to 291 trades (compared with 150 previously) by the Order of 1 October 2012, and that the tax that has to be paid by the employer to the National Office for Immigration and Integration has been abolished. With regard to the school attendance of Roma children, it also notes the publication in September 2012, by the Minister responsible for success in education, of three circulars intended to remove difficulties related to the schooling of Roma children “often due to material obstacles related to their itinerant lifestyle, but also to their precarious situation and certain stereotypes” and to prevent them dropping out of school. However, the Committee notes that the dismantling of Roma camps is continuing, without alternative solutions for accommodation being found, thereby reinforcing their marginalization, stigmatization and the prejudices of which the members of the Roma community are already victims, and creating obstacles to their social integration and the school attendance of their children. In its previous comments, the Committee noted that in 2010 the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern at the increase in manifestations of racism and racist violence against the Roma on French territory and the difficulties that they face with regard to the exercise of their economic, social and cultural rights (CERD/C/FRA/CO/17-19, of 27 August 2010, paragraphs 14 and 15). Noting that the Government’s report does not contain a reply to its previous comments, the Committee urges it to take appropriate measures, in collaboration with the organizations representing the Roma, to combat discrimination against the Roma effectively and to promote respect and tolerance, and to provide information on the measures adopted in this respect. The Committee also requests the Government to provide information on the following points:

(i) the measures taken to ensure the school enrolment and retention at school of Roma children, and for the vocational training of young persons and adults; and
(ii) the impact of the extension of the list of trades accessible to Romanian and Bulgarian nationals on the access to employment, including self-employment, of members of the Roma community.

Promotion of equality of opportunity and treatment in the public service. Noting that the Government’s report does not contain any information on this subject, the Committee is bound to reiterate its request for the provision of information on the implementation of these measures and provisions, including the Charter to Promote Equality in the Public Service, and on any plan of action adopted to promote professional equality at all stages of employment in the public sector, the obstacles encountered and the evaluation of the overall results of these measures, including on access by all to the public service without discrimination on the basis of any of the grounds prohibited by the national legislation and the Convention, accompanied by appropriate statistical data. With regard to the comments made in May 2010 by the National Union of Scientific Research Workers and the Autonomous National Union of Sciences concerning the career orientation system envisaged by Act No. 2009-972 of 3 August 2009 in relation to mobility and career paths in the public service, of which the trade union organizations emphasized the potentially discriminatory nature, the Committee requests the Government to provide information on the implementation of this system in practice and on any difficulties encountered.

Promotion of equality of opportunity and treatment for men and women in employment and occupation. The Committee notes the data on the employment of men and women provided by the Government, showing the persistence of inequality in employment and occupation. The Committee welcomes the adoption of Act No. 2011-103 of 27 January 2011 on the balanced representation of women and men on executive boards and occupational equality, which provides for the progressive introduction of quotas for the representation of each gender on these bodies (40 per cent by 2017). The Act also provides that such boards shall discuss each year the enterprise policy on vocational and wage equality based on a report of the comparative situation of the general conditions of employment of women and men in the enterprise. However, the Committee notes that, according to a study conducted in February 2011, only half of enterprises had prepared the comparative report. The Committee notes the adoption of Act No. 2010-1330 of 9 November 2010, section 99 of which establishes a financial penalty, which may be as high as 1 per cent of the payroll, in the absence of a negotiated agreement or plan of action for occupational equality, which has to be adopted on the basis of the comparative report. It nevertheless notes that Decree No. 2011-822 of 7 July 2011, issued under section 99 of the Act of 2010, provides that, in certain cases, including economic difficulty, the penalty applicable to an enterprise which has not fulfilled its obligations in this respect may not be applied or may be reduced. In this regard, the Committee notes that a draft text to revise the provisions on the application of sanctions to enterprises which are not in compliance with the Act on occupational equality is currently being prepared in collaboration with the social partners. The Committee further notes the information on collective bargaining on occupational equality provided by the Government in its report under the Equal Remuneration Convention, 1951 (No. 100). According to this information, collective bargaining at the branch and enterprise levels is progressing, even though it remains inadequate, and the content of the agreements concluded is constantly improving. The Committee notes in this respect that an analysis of the branch agreements found good practices which have been published on the website of the Ministry of Labour, Employment, Vocational Training and Social Dialogue with a view to helping enterprises give effect to the legislative provisions. The Committee also notes that equality for men and women in employment and occupation is one of the principal themes addressed by the Major Social Conference which brought together the Government and the social partners in July 2012. It observes that on this occasion the Government and workers’ and employers’ organizations determined “the conditions for tripartite commitment to real equality for women and men” and agreed on the establishment of a steering committee and on experiments at the regional level. The Committee notes that workers’ and employers’ organizations engaged in inter-occupational bargaining in September 2012 on occupational equality for men and women and the quality of working life. Welcoming the commitment demonstrated by the Government to address inequalities between men and women, in collaboration with the social partners, and the resources allocated to this purpose, the Committee requests the Government to provide information on the measures adopted and the action taken to this end, including any measures relating to education and vocational guidance and training, and the results achieved. It also requests the Government to provide information on the implementation of Act No. 2011-103 of 27 January 2011 on quotas and on the effect given to the system of penalties established by Act No. 2010-1330 of 9 November 2010, including information on any further measures in this respect. Please continue to provide information on the outcome of collective bargaining on occupational equality at all levels.

The Committee also recalls that, in a previous report, the Government indicated that inequalities between men and women in relation to access to the labour market persisted in Guadeloupe and French Guiana and that there had been no significant improvement in the situation in recent years. The Committee once again requests the Government to provide specific information on the measures adopted and the action taken to promote equality for men and women in employment and occupation in the overseas departments, including the measures taken to combat gender stereotypes.

Equality of opportunity and treatment in education and vocational training. Persons with disabilities. The Committee notes that in its Opinion No. 2011-119 of 18 April 2011, the HALDE, which commissioned two surveys on the schooling of children with disabilities and examined the impact of Act No. 2005-102 of 11 February 2005 on equality of rights and opportunities, the participation and citizenship of persons with disabilities, recommended four areas of priority action: the accessibility, prior to the 2015 deadline, of all public and private contracted schools and teaching establishments; the effective allocation of financial and human resources for the schooling in ordinary establishments of school children with disabilities; the strengthening of coordination between the various actors engaged in the education of children and young persons with disabilities; and the implementation of suitable measures to give effect to the right to education of children with disabilities in medical and social establishments and services and health-care facilities. The Committee requests the Government to provide information on the implementation and impact of Act No. 2005-102 in the field of education and vocational guidance and training for persons with disabilities, and to indicate the action taken as a result of the recommendations issued by the HALDE in 2011 to ensure equality of opportunity and treatment for persons with disabilities in education and vocational training.

Institution to combat discrimination and promote equality. In its previous comments, the Committee emphasized on numerous occasions the importance of the role and the work of the HALDE. The Committee notes that, following the adoption of Basic Act No. 2011-333 of 29 March 2011 respecting the Rights Ombud, the HALDE has been integrated into a single institution, the Office of the Rights Ombud, which is entrusted with (i) defending individual rights and freedoms in the context of relations with administrations; (ii) defending and promoting the higher interests and rights of the child; (iii) combating types of discrimination prohibited by law and promoting equality; and (iv) ensuring compliance with ethical standards by persons engaged in security activities. The Committee notes that, according to the 2011 annual report of the Rights Ombud, the number of cases received and dealt with by the “Mission to combat discrimination”, the body operating within the Office of the Rights Ombud, has fallen by over one third in relation to 2010, and that this decline cannot only be explained by a reorientation of certain cases to other units of the Office of the Rights Ombud, but is also due to a deficit in communication by the new institution concerning its competence in relation to discrimination. The Committee also notes that the section of the 2011 annual report of the Rights Ombud devoted to combating discrimination contains much less information than the previous reports of the HALDE, which regularly provided a fairly detailed assessment of the situation with regard to discrimination in employment and occupation and the measures intended to remedy it. The Committee further notes that in August 2011 a report entitled “Perceptions of the HALDE by enterprises” was submitted to the Rights Ombud and that it contains 15 recommendations concerning, among other matters, the promotion of equality and information, the strengthening of partnerships with enterprises and the social partners and the creation of a discrimination observatory. The Committee asks the Government to ensure that the “Mission to combat discrimination”, within the Office of the Rights Ombud, is able to pursue and intensify its awareness-raising activities against discrimination and to promote equality without distinction based on the grounds of discrimination in employment and occupation that are prohibited by law, and requests the Government to provide information in this regard. It trusts that the Government will take the necessary measures to ensure that the “Mission to combat discrimination” continues to be allocated the necessary resources and personnel so that it can discharge not only its functions relating to the examination of complaints, but also in the fields of awareness raising and information, training, research and analysis, and issuing recommendations to the public authorities, and asks the Government to provide information on concrete steps taken. The Committee also requests the Government to provide information on the action taken as a result of the recommendations contained in the report on the “Perceptions of the HALDE by enterprises”, particularly in relation to collaboration with workers’ and employers’ organizations.

Labour inspection. Noting that the report does not contain any information in reply to its previous request, the Committee asks the Government to provide information on the activities carried out in practice by labour inspectors in relation to protection against discrimination and the promotion of equality in employment and occupation throughout the territory, including indications of the action taken in the overseas departments and regions.

Statistics. The Committee welcomes the production by the Office of the Rights Ombud and the National Commission on Information Technology and Freedoms (CNIL) of a methodological guide for employers on the collection of data with a view to achieving progress in equality in employment. The guide indicates the procedures to be followed for the establishment of reliable measurement indicators so as to enable employers to take action to achieve equality in compliance with the legislation and to ensure the protection of personal data. The Committee also notes that the Committee for the Measurement of Diversity and the Evaluation of Discrimination (COMEDD) has prepared a report entitled “Inequality and discrimination: Towards a critical and responsible use of statistics” (February 2010). The Committee wishes to recall that, with a view to determining the nature, extent and causes of discrimination and inequalities, it is indispensable to have available relevant data and statistics with a view to determining priorities and developing appropriate measures, monitoring and evaluating their effectiveness and making any adjustments which may prove necessary. The Committee requests the Government to provide information on the dissemination to enterprises of the guide published by the CNIL and the Rights Ombud on the collection of data relating to equality in employment, and on its use in practice. It also requests it to provide information on the manner in which the impact is evaluated of the measures that it takes to combat discrimination and promote equality in employment, and accordingly to evaluate the progress achieved. Please indicate any action taken on the basis of the recommendations contained in the report of the COMEDD in this respect.