Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Maldives (Ratification: 2013)

Autre commentaire sur C111

Demande directe

2019

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The Committee notes the Government’s first report.

Articles 1 and 2 of the Convention. Prohibition of discrimination and equal opportunity and treatment in employment and occupation. Legislation. The Committee notes that article 17(a) of the Constitution of 2008 prohibits discrimination of any kind, including on the ground of race, national origin, colour, sex, age, mental and physical disability, political or other opinion, property, birth or other status, or native island; and article 37 of the Constitution provides that every citizen has the right to engage in any employment or occupation and is entitled to an equal opportunity for promotion. It further notes that the Employment Act No. 2/2008, which covers all employment and persons both in the public and private sectors with the exception of the military and the police, prohibits discrimination against persons carrying out equal work, either in the granting of employment, the determination of remuneration, increases in remuneration; the provision of training; determination of conditions and manner of employment; dismissal from employment or in the resolution of other employment-related matters, when based on race, colour, social standing, religion, political beliefs or affiliation with any political party, sex, marital status, family obligations, and insofar as it does not contravene other provisions of the Act, on age or disability (sections 2(a) and 4(a) of the Act). The Committee also notes that the Gender Equality Act No. 18/2016 explicitly prohibits direct and indirect discrimination based on the following grounds: gender, sex, marital status, family responsibility, maternity, childbirth, breastfeeding or the possibility of breastfeeding, “qualities or roles attributed or not attributed by society to a specific gender”, “established practices promoting inequality towards men and women”, “established practices that diminish the dignity of a specific gender” and “social and cultural beliefs that a specific gender is superior or that a specific gender is inferior” (sections 7 and 9). It provides that employers, both in the public and private sectors, shall provide equal opportunity for men and women in employment, training and advancement position (sections 20(a) and (d)). The Committee observes that: (i) no explicit reference is made to direct and indirect discrimination in the Constitution and the Employment Act; and (ii) the Employment Act limits the scope of the prohibition of discrimination to “persons carrying out equal work”. It notes the Government’s indication, in its report, that public education programmes to provide information and promote non discriminatory policies in the workplace are mainly implemented by the Labour Relations Authority through public, print and social media, as well as during field inspections. The Committee asks the Government to indicate whether the above-mentioned legislative framework covers both direct and indirect discrimination based on at least all the grounds set out in Article 1(1)(a) of the Convention, as well as the manner in which direct and indirect discrimination are defined and interpreted in practice, including by providing copy of any relevant administrative or judicial decisions. Noting that section 4(a) of the Employment Act prohibits discrimination “amongst persons carrying out equal work”, the Committee asks the Government to provide clarification on the scope of application of this provision, indicating: (i) how the terms “equal work” have been interpreted in practice; and (ii) the manner in which it is ensured that persons carrying out different work are also protected against discrimination in employment and occupation. Recalling that the ground of “national extraction” set out in the Convention covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, the Committee also asks the Government to clarify the meaning of “national origin” in article 17(a) of the Constitution. The Committee asks the Government to provide information on the measures taken to raise awareness among workers, employers and their respective organizations, and law enforcement officials, of the relevant legislative provisions and principles of the Convention, the procedures and remedies available, as well as on any activity carried out by the Labour Relations Authority or any other competent body in that regard.

Police and armed forces. The Committee notes that the police and armed forces are excluded from the scope of the Employment Act (section 2(a)). It notes that section 55 of the Police Act No. 5/2008 and section 25(a) of the Armed Forces Act No. 1/2008 provide that the Minister shall oversee the recruitment, assignment of posts, promotion, demotions, and training of police officers and members of the armed forces, in accordance with the regulations adopted pursuant to those Acts. The Minister shall formulate regulations, in particular on employment, training and the awarding of promotion of police and armed forces (section 17 of the Police Act and section 46 of the Armed Forces Act). The Committee asks the Government to indicate how it is ensured, in law and in practice, that police officers and members of the armed forces are effectively protected against direct and indirect discrimination based on at least all the grounds set out in Article 1(1)(a) of the Convention (race, colour, sex, religion, political opinion, national extraction and social origin), in all aspects of employment and occupation, as defined in Article 1(3).

Article 1(1)(a). Discrimination based on sex. Sexual harassment. Noting that section 14(b)(8) of the Gender Equality Act No. 18 of 2016 considers sexual harassment “gender-based discrimination”, the Committee takes note of the Sexual Harassment and Abuse Prevention Act No. 16/2014. It further notes the adoption of the Strategic Action Plan (SAP) for 2019–23 which includes a specific strategy to ensure the enforcement of legislation on sexual harassment, including by conducting an assessment to identify main challenges faced in the implementation of such strategy by 2021 (SAP, page 424). The Committee notes from the Government’s report submitted on 11 April 2019 to the UN Committee on the Elimination of Discrimination against Women (CEDAW) that there is a relatively high level of sexually suggestive or obscene language at the workplace, with women generally being afraid of lodging complaints, and that the 2016–17 Demographic Health Survey shows that 22 per cent of the women aged from 15 to 49 years have experienced either physical or sexual violence or both (CEDAW/C/MDV/6, 11 April 2019, paragraphs 22 and 39). The Committee asks the Government to provide a copy of the Sexual Harassment and Abuse Prevention Act No. 16/2014 and of any other legislation defining and prohibiting both quid pro quo and hostile work environment sexual harassment, as well as information on its implementation in practice, in particular in the framework of the Strategic Action Plan for 2019–23. It asks the Government to provide information on any preventive measures adopted, including steps taken to raise awareness of the relevant provisions of national legislation and on this serious manifestation of sex discrimination, the remedies and procedures available, in particular among women workers. The Committee asks the Government to provide information on the number of cases of sexual harassment dealt with by the labour inspectors, the Human Rights Commission, the courts or any other competent authority, as well as the sanctions imposed and remedies granted.

Religion. The Committee notes that section 6 of the Human Rights Commission Act No. 6 of 2016 provides that all members of the Human Rights Commission must be Muslim. It notes that similarly section 12 of the Maldivian Civil Service Act provides that members of the Civil Service Commission, which is responsible for recruiting, appointing, promoting, transferring and dismissing members of the civil service and establishing personnel procedures relating to recruitment, appointments, transfers, promotions and dismissals, must be Muslim. The Committee therefore asks the Government to indicate the manner in which protection against direct and indirect discrimination on the ground of religion in employment or occupation is ensured in practice to all workers, both in the public and private sectors. It asks the Government to examine section 12 of the Maldivian Civil Service Act and section 6 of the Human Rights Commission Act. In the meantime, the Committee asks the Government to provide information on any measures taken to ensure that the decisions taken by private employers as well as by the Maldivian Civil Service on the appointments, transfers, promotions and dismissals of civil service officers do not lead to direct or indirect discrimination against non-Muslims in practice.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee notes that article 17(a) of the Constitution prohibits discrimination on the ground of mental or physical disability. It further notes from the Government’s report submitted to the United Nations Committee on the Rights of Persons with Disabilities (CRPD), that section 19(a) of the Protecting the Rights of Persons with Disabilities and Providing Financial Assistance Act No. 8/2010 (Disability Act) guarantees that persons with disabilities have the right to equal opportunities in employment; section 19(b) prohibits discrimination in granting of employment and in the work environment on the basis of disability; and section 19(e) explicitly prohibits discrimination against persons with disabilities in the provision of education and training opportunities, promotion and career advancement, and in the provision of allowances. It notes however that, despite such legislative provisions, persons with disabilities face many challenges in accessing employment and those who are in employment report negative attitudes and lack of understanding of their needs, which discourage them from continuing in employment (CRPD/C/MDV/1, 7 March 2019, paragraphs 122 and 123). The Committee notes that the SAP for 2019–23 sets as specific actions the increase of persons with disabilities accessing employment and vocational education and the establishment of a mechanism for filing and addressing complaints regarding difficulties in the workplace faced by them, by 2020. The Committee asks the Government to provide information on the application of section 19 of the Disability Act No. 8/2010 in practice, including on any cases or complaints concerning discrimination on the ground of disability dealt with by the labour inspectors, the Human Rights Commission, the courts or any other competent authority, the sanctions imposed and the remedies granted. It asks the Government to provide information on any measures taken to promote access for persons with disabilities to training and employment and to improve their access to the open labour market, including within the framework of the Strategic Action Plan for 2019–23, as well as on any specific complaint mechanisms established as a result. The Committee asks the Government to provide statistical data on the employment rates of women and men with disabilities, both in the public and private sectors.

Article 1(2). Inherent requirements of the job. The Committee notes that section 20(d) of the Gender Equality Act No. 18/2016 provides that “employment opportunities shall not be offered or advertised to restrict a particular sex, except in circumstances where the work is required to be undertaken by a particular gender”. The Committee asks the Government to provide information on the application of section 20(d) of the Gender Equality Act in practice, by providing concrete examples of circumstances where it has been considered that the work required to be undertaken by a particular gender. It also asks the Government to provide information on the measures taken to ensure that women are not excluded, in law or in practice, from certain types of work.

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee notes that the Gender Equality Act No. 18/2016 provides that the Ministry shall formulate and implement a national policy and action plan on gender equality (section 42(a) of the Act). Noting the Government’s statement that the national policy has not yet been adopted, the Committee notes that the SAP for 2019–23 sets as specific action the ensuring of “the effective implementation of the Gender Equality Act by finalizing, endorsing and implementing the national policy on gender equality and action plan by 2020”. The Committee notes that, within the framework of the SAP for 2019–23, the Government acknowledges that there is a large proportion of women outside of the workforce and a lack of incentives to hire women, along with cultural barriers and stereotyping. In the Maldives, women are considered to be, and are, the main caregiver in families, and the lack of adequate childcare facilities and alternative and flexible working arrangements prevent them from achieving economic independence. The Government further acknowledges that women’s labour force participation rates have declined significantly while women’s unemployment rates are still twice as high as that of men, and that despite legislative improvements resource constraints restrict the implementation of national legislation to achieve gender equality. The Committee notes that the SAP provides for a specific strategy on women’s economic empowerment and representation in decision-making, including by: (i) eliminating barriers for women to participate in economic activity including cultural barriers by promoting shared care work and household responsibilities and increasing public awareness on the long-term benefits of ensuring gender equality across all spheres of life; (ii) improving data collection and analysis of women’s employment and entrepreneurship trends, including women’s economic contributions through home-based and informal work; (iii) conducting a detailed analysis on the economic participation and vulnerabilities faced by women using existing data sources and identifying data gaps; and (iv) conducting awareness raising sessions for communities to eliminate barriers faced by women. The Committee notes from the 2018 statistical update of the United Nations Development Programme (UNDP), that women’s labour force participation rates significantly decreased from 57.1 per cent in 2011 to 42.9 per cent in 2017, and is almost twice as low as that of men (82.1 per cent for men in 2017). It further notes that, in its last concluding observations, the CEDAW expressed concern about: (i) the persistence of deeply entrenched traditional stereotypes regarding the roles and responsibilities of women and men and the growing trend of conservative interpretations of religion encouraging stereotypical patterns, which have a negative impact on women and girls; (ii) girls’ limited access to higher levels of education, as well as vocational and technical training, due to stereotypes and geographical constraints; (iii) the concentration of women and girls in traditional fields of study; (iv) the high percentage of women who are self-employed or employed in the informal sector; and (v) the gender pay gap in both the public and private sectors (CEDAW/C/MDV/CO/4-5, 11 March 2015, paragraphs 20, 32 and 34). The Committee asks the Government to provide information on the measures taken, including within the framework of the Strategic Action Plan for 2019–23, to improve equality of opportunity and treatment between men and women in employment and occupation by effectively combatting gender stereotypes and enhancing women’s economic empowerment and access to decision-making positions, as well as girls’ and women’s access to higher education and vocational training, especially in areas traditionally dominated by men, in particular for girls and women from rural areas and remote islands. The Committee asks the Government to provide statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.

Migrant workers. Referring to its 2018 direct request on the application of the Forced Labour Convention, 1930 (No. 29), the Committee takes note of the Prevention of Human Trafficking Act No. 12/2013. It notes however, from the 2019 Government’s report to the CEDAW, that migrant workers are subjected to exploitation and abuse, including confiscation of identification documents, non payment of wages, and inhumane treatment. Most migrants would not be aware of the procedures for lodging a complaint, and even if they were aware, most would be hesitant in disclosing their undocumented status due to fear of deportation and the heavy debt they will have incurred in accessing informal migration channels. The Government also highlights that in several cases migrant female domestic workers are prevented from leaving their employers’ homes through threats and other means, and are at times trapped in situations of forced labour (CEDAW/C/MDV/6, 11 April 2019, paragraph 86). The Committee asks the Government to provide information on the application of the Prevention of Human Trafficking Act No. 12/2013 in practice, in particular regarding the effective protection of migrant workers from discrimination on the basis of race, colour or national extraction and abuse. It asks the Government to provide information on any measures taken or envisaged to prevent and address discrimination against migrant workers in terms and conditions of employment to ensure the full application of the Convention in respect of all migrant workers, in particular women domestic workers, including awareness-raising activities of their rights, remedies and procedures available, and their impact. The Committee asks the Government to provide information on the number, nature and outcome of cases of discrimination against migrant workers dealt with by the labour inspectors, the Human Right Commission, the courts, or any other competent authority, the sanctions imposed and remedies provided.

General observation of 2018. Regarding the above issues, and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation with workers’ and employers’ organizations. The Committee notes the Government’s indication that there is currently no formal or structured mechanism established for consultation with social partners but that, when needed, consultations are carried out with employers’ and workers’ organizations on matters relating to the promotion of the non-discrimination principle. It also notes that the SAP for 2019–23 sets as specific action to “revive and ensure proper functioning of the National Tripartite Labour Advisory Council (NTLAC) as a forum for social dialogue on labour and employment governance”, by 2020. The Committee asks the Government to provide information on the specific activities undertaken by employers’ and workers’ organizations concerning equal opportunity and treatment in employment and occupation, including any awareness-raising activities undertaken in that respect. It asks the Government to provide information on any progress made in the establishment of the National Tripartite Labour Advisory Council and, if so, on its activities on the issues covered by the Convention.

Article 5. Special measures of protection. The Committee notes that, pursuant to article 17(b) of the Constitution and section 4(b) of the Employment Act, special measures of assistance or protection for disadvantaged persons or groups are not deemed to be discrimination. It further notes that section 13 of the Gender Equality Act provides that “measures aimed at assisting or protecting a particular gender shall not be considered as discrimination”. The Committee asks the Government to provide information on the application of article 17(b) of the Constitution, section 4(b) of the Employment Act and section 13 of the Gender Equality Act, in practice, including by describing any positive measures effectively taken to promote equal opportunities for disadvantaged persons or groups in employment and occupation, such as incentive schemes, and the results achieved.

Enforcement. The Committee notes the Government’s indication that the Ministry of Economic Development (MED) acts as the national authority which oversees the implementation of the employment legislation, and the Labour Relations Authority, which is responsible for conducting inspection of workplaces, reports directly to the Minister. It notes that the Employment Act provides that when complaints are lodged against an employer alleging discrimination: (i) the burden of proof is shifted on to the employer to show that there has been no discrimination or that any discrimination is based on reasonable cause and does not contravene the prohibition of discrimination set out in the Act; and (ii) that such complaints shall be dealt with expeditiously (sections 4(d) and 5 of the Act). The Committee notes that, pursuant to sections 85 to 88 of the Employment Act, an employment tribunal was established. It further notes that the Human Rights Commission has been established to monitor the human rights situation and raise public awareness of rights and available remedies, while it does not, however, provide remedies or opinions publicly on human rights abuses. Noting that, pursuant to sections 20(g), 29 and 30 of the Gender Equality Act, all public and private sector employers shall establish an internal complaints mechanism within three months of the enactment of the Act and follow the minimum standards established to that end by the Minister (section 42(i) of the Act), the Committee notes, from the 2019 Government’s report to CEDAW, that such minimum standards were adopted on 12 June 2017 and that to date 38 institutions have established such internal complaints mechanisms. The Government also states in that report that “of greater concern is limited public confidence in the transparency and independence of the judiciary, due to the lengthy periods for cases to be processed”, and a perception of limited fairness and that the Government is committed to reforming the justice system “to instil greater public confidence in the judicial process, to the effect that justice is served independently and impartially” (CEDAW/C/MDV/6, 11 April 2019, paragraph 124). The Committee asks the Government to provide information on the number, nature and outcome of any complaints or cases of discrimination in employment and occupation dealt with by the labour inspectors, the Human Rights Commission, the courts or any other competent authority, the sanctions imposed and the remedies granted. It also asks the Government to provide updated information on the number of internal complaints mechanisms established pursuant to the Gender Equality Act, as well as on any assessment or study available on their activities, efficiency and impact. The Committee also asks the Government to provide information on any measures taken or envisaged to enhance greater access and confidence in the judiciary, and on their impact.