Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Comores (Ratification: 2004)

Autre commentaire sur C111

Observation

Demande directe

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The Committee notes the observations of the Confederation of Workers of Comoros (CTC), received on 31 August 2017, alleging the existence of discriminatory practices and the absence of competition for recruitment in the public service. It recalls that observations were also made by the CTC in 2016 on the lack of a wage scale in the private and parastatal sectors, on the one hand, and the discriminatory application of two different wage scales in the public service, on the other, and notes that the Government has not provided comments on this subject. The Committee therefore asks the Government to provide its comments on all the points raised by the CTC in 2016 and 2017 concerning the public service.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. National extraction. Termination of employment. The Committee recalls that the unlawful grounds for termination of employment set out in section 44(b) of the Labour Code do not include “national extraction”, even though section 2 of the Labour Code “prohibits any employer from taking into consideration […] national extraction […] as a basis for decisions in relation to recruitment, terms and conditions of employment, training, further training, remuneration, disciplinary measures and termination of employment, and any other form of discrimination”. While noting that the Government reaffirms its commitment to inserting the ground of “national extraction” in the texts issued under the Labour Code, which will be devoted to unlawful termination of employment, the Committee asks it to take the necessary measures to harmonize the provisions of sections 2 and 44(b) of the Labour Code on the occasion of a future revision of the Labour Code, by introducing “national extraction” in the list of unlawful reasons for termination of employment set out in section 44(b), with a view to preventing any legal uncertainty. The Government is asked to provide information on any measures taken for this purpose.

Discrimination based on sex. Sexual harassment. The Committee recalls that sexual harassment is defined and prohibited by section 2(2) of the Labour Code, which also provides that the “employer shall take all the necessary measures to prevent acts of sexual harassment”. In its previous comments, the Committee asked the Government to provide information on the manner in which the provisions of the Labour Code (section 2(2) and 2(3)) and the Penal Code (section 294) addressing sexual harassment were applied in practice by labour inspectors and magistrates, including information on the number and the nature of the violations reported and detected, investigations conducted, prosecutions initiated, sanctions imposed and compensation awarded. The Committee notes that the Government’s report does not contain information on sexual harassment at work. The Committee considers that the prohibition by law of sexual harassment is an important step in eliminating such behaviour. However, it recalls that it is important to take practical measures for its effective prevention, detection and punishment. The Committee asks the Government to provide information on the specific steps taken at the national level to prevent sexual harassment, such as campaigns to raise the awareness of employers and workers and training to inform them of the legislative provisions addressing sexual harassment and the identification of such behaviour, including information on the number and nature of the violations reported and detected and the penalties imposed. The Committee also asks the Government to indicate the manner in which it encourages employers to take the preventive measures set out in the Labour Code (section 2(2)) and to provide examples of such measures adopted at the enterprise level. The Government is also asked to provide information on the manner in which persons with permanent employment in public administration (public servants and others), who are excluded from the scope of application of the Labour Code, are protected against sexual harassment at work.

Article 1(1)(a) and (3). Prohibited grounds of discrimination. Protection against discrimination at all stages of employment and occupation. Public service. The Committee recalls that section 5 of the Public Service Regulations (Act No. 04 006 of 10 November 2004) provides for equality of opportunity “without distinction as to gender, religion, origin, race, political opinion, social position”, but only concerns access to public employment. Moreover, section 5 omits the following grounds of discrimination: colour, social origin and national extraction, which are enumerated in Article 1(1)(a) of the Convention. In its previous comments, the Committee asked the Government to consider the possibility of amending the Public Service Regulations so as to prohibit any discrimination based on all the grounds set out in the Convention, including colour, social origin and national extraction, at all stages of employment and occupation, within the meaning of the Convention, and not only during recruitment, and to provide information on the measures adopted in this respect. The Committee notes that the Government’s report does not contain any information on this subject. It recalls that the Convention prohibits discrimination in employment and occupation and that, under the terms of Article 1(3) of the Convention, the terms “employment” and “occupation” include, not only access to employment and to particular occupations, but also terms and conditions of employment, which include promotion, security of tenure of employment (termination of employment), remuneration, conditions of work (including hours of work), rest periods, annual holidays with pay, occupational safety and health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment, in accordance with Paragraph 2(b)(iii) to (vi) of the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111).

The Committee asks the Government to provide information on the measures adopted or envisaged to amend the General Public Service Regulations with a view to ensuring the protection of public employees against any discrimination on the basis of all the grounds set out in the Convention, including colour, social origin and national extraction, at all stages of employment and occupation, within the meaning of the Convention (not only during recruitment), and to provide information on the measures adopted in this respect.

Article 1(1)(b). Discrimination on the basis of HIV status. The Committee recalls that a National Strategic Plan to Combat HIV/AIDS (2011–15), one of the objectives of which is to combat stigmatization and discrimination against persons living with HIV, was drawn up with ILO support and adopted by the Government. Noting that, despite its request, the Government’s report does not contain any information on the implementation of the National Strategic Plan to Combat HIV/AIDS (2011–15), the Committee once again asks the Government to provide information on the specific steps taken, in this context or otherwise, to take effective action to combat discrimination on the basis of HIV/AIDS status, including measures to raise awareness of the provisions of the Labour Code on this subject and training for workers, employers, their organizations, labour inspectors and controllers and magistrates.

Civil service. The Committee recalls that section 2 of the Labour Code prohibits any employer from taking into consideration real or perceived health status, including in relation to HIV/AIDS, when taking decisions in relation to employment. The Committee requests that the Government consider the possibility of harmonizing the protection for civil servants against discrimination established by the General Civil Service Regulations (section 5) with that afforded to private sector workers by the Labour Code (section 2), by extending protection to cover real or perceived health status, including HIV status.

Article 2. National policy. Equality of opportunity and treatment for men and women. In its previous observations, the Committee asked the Government to take the necessary steps to remove obstacles to the participation of women in employment and various occupations and to promote their access to credit and resources, including measures to combat stereotyping and prejudice towards women, and to provide information on any measures taken in this regard. It also asked the Government to provide information on the measures taken to implement the National Policy on Gender Equity and Equality (PNEEG) and the subregional gender policy and strategy of the Indian Ocean Commission adopted by the governments of the countries in the region in April 2009, or any other policy adopted more recently on this subject. The Committee further asked for information on the results achieved in relation to equality for men and women in employment and occupation. The Committee notes the Government’s indication in its report that plans of action for the implementation of the PNEEG were prepared in 2009 by sector and that an evaluation of the PNEEG was undertaken in May 2016. The Government specifies that initiatives have been adopted to reinforce and develop predominantly female economic activities and to promote the integration of women into various sectors. It adds that access to traditional bank credit is increasingly open to women entrepreneurs. The Committee also notes and welcomes the inclusion in the National Employment Policy, adopted in 2014, of a strategic focus entitled “Support for employment promotion for young persons and women” and the adoption in 2013 of the Steering Plan for Women’s Entrepreneurship (PDEF), which provides for financing mechanisms for women and measures to reinforce capacities for enterprise management, commerce and new technologies, from which 200 women have already benefited. The Committee notes that a new Decent Work Country Programme (DWCP) has been adopted for the period 2015–19. This records that, despite a very slight improvement, women are still experiencing an unemployment rate that is twice as high as that of men, irrespective of their educational level, and that they need to be encouraged to participate more fully in economic activities. The objectives of the DWCP include increasing opportunities for decent employment for women by focusing on technical and vocational training, and improving the governance of the labour market, with particular reference to aspects relating to equality for men and women. While welcoming the Government’s initiatives to promote women’s employment, the Committee once again asks the Government to take specific steps to eliminate obstacles to the participation of women in employment and the various occupations, and particularly vocational guidance and training measures to combat stereotypes and prejudices regarding the capacities and vocational aspirations of girls and women and, more generally, stereotypes and prejudices concerning their role in society, and to provide information on any measures adopted in this respect. The Government is also asked to provide detailed information on the results of the evaluation of the PNEEG undertaken in 2016, on any follow-up measures taken and on the initiatives adopted in the context of the implementation of the DWCP (2015–19) to promote equality for men and women in employment and occupation.

Entitlement to leave. The Committee recalls that section 133 of the new Labour Code provides that, unless there are more favourable provisions in collective agreements, working mothers with children under 15 years of age acquire entitlement to paid leave from the employer at the rate of at least three calendar days of effective service a year (instead of two-and-a-half days). The Government confirms that it has noted the Committee’s request to extend the benefit of section 133 to fathers of children under 15 years of age. With a view to promoting equality between men and women workers with family responsibilities and the sharing of such responsibilities, the Committee once again asks the Government to consider the possibility of extending the benefit of section 133 to working fathers with children under 15 years of age so as to ensure that such leave is granted to the men and women workers concerned on an equal footing.

Equality of opportunities and treatment irrespective of race, colour, religion, political opinion, national extraction and social origin. Since 2007, the Committee has been asking the Government to indicate the measures adopted or envisaged for the formulation and implementation of a national policy to ensure equality in employment and occupation for everyone, without distinction on the basis of race, colour, religion, political opinion, national extraction or social origin. The Committee notes that the Government’s report still does not contain information on this subject. It recalls that Article 2 of the Convention requires States which ratify the instrument to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. The Committee emphasizes in this regard that the implementation of a national equality policy presupposes the adoption of a range of specific measures, which often consist of a combination of legislative and administrative measures, collective agreements, public policies, affirmative action measures, dispute resolution and enforcement mechanisms, specialized bodies, practical programmes and awareness raising (see the 2012 General Survey on the fundamental Conventions, paragraphs 848–849). The Committee once again asks the Government to take steps to declare and pursue a national policy designed to promote equality in employment and occupation for all the categories of the population, without distinction on the basis of race, colour, religion, political opinion, national extraction or social origin.

Article 3(d). Equality of opportunity. Recruitment to the public service. The Committee notes that CTC reiterates its allegations of discrimination in recruitment to the public service and asserts that, contrary to the provisions of the law, no competitions are organized for recruitment to vacancies. The CTC also states that there is a lack of appropriate complaints procedures for victims and specifies that neither the Higher Council of the Public Service nor the Joint Committee have been established. In the absence of information in the Government’s report on the recruitment procedures in the public service in practice and in response to the observations of the CTC, the Committee once again asks the Government to provide information on the measures taken to ensure the effective application of the principle of equality of opportunity set out in the Convention in relation to recruitment to positions that are under the direct control of a national authority (public servants and others), and on the complaints procedures available in the event of allegations of discrimination, and the activities of the Higher Council of the Public Service and the Joint Committee in this respect. The Committee also asks the Government to provide statistical information on the composition of the staff of the public service (disaggregated by sex and category), including the number of persons recruited each year.

Article 5. Special protection measures. In its previous comments, the Committee asked the Government to ensure that regulations limiting the access of women to certain jobs, issued under the Labour Code, are not based on stereotypes regarding the professional abilities and role of women in society, and that they are strictly limited to maternity protection. Noting the Government’s indication in its report that it has taken note of this request, the Committee asks it to provide information on the adoption of any regulatory provisions limiting the access of women to certain jobs, or regulating such access.

Enforcement. Labour inspection services and the courts. The Committee notes the Government’s general indication that the labour inspection services have been notified of several cases of termination of employment on the basis of discrimination. The Committee asks the Government to provide detailed information on any cases of discrimination dealt with by the labour inspection services or the courts, including any cases of sexual harassment, with an indication of the basis of the discrimination, the remedial measures adopted, penalties against those responsible for the discrimination and the compensation granted to the victims. Recalling the importance of the role of the labour inspection services in combatting discrimination, the Committee asks the Government to encourage the labour inspection services to engage in awareness raising activities on discrimination issues, including sexual and psychological harassment, for workers, employers and their respective organizations.

Statistics. The Committee once again hopes that the Government will soon be in a position to provide recent statistical data on the situation of men and women in employment and occupation in the public and private sectors, and asks it to provide such statistics as soon as they are available.