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

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Portugal (Ratification: 1959)

Autre commentaire sur C111

Observation

Demande directe

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN), received on 1 September 2017, all forwarded by the Government.

Article 1(1)(a). Discrimination based on sex. The Committee previously noted that Law No. 28/2015 includes “gender identity” as a prohibited ground of discrimination under section 24(1) of the Labour Code and requested the Government to provide information on its application in practice. While regretting the lack of information provided by the Government in that regard, the Committee notes with interest the adoption of Law No. 38/2018, of 7 August 2018, on the right to the self-determination of gender identity and gender expression and to the protection of the sexual characteristics of each person, which establishes a general prohibition of direct or indirect discrimination on the grounds of gender identity, gender characteristics and gender expression and provides that private entities shall comply with the Law (section 2). The Committee further welcomes the adoption of the Action Plan to combat discrimination linked to sexual orientation and gender identity and expression for 2018–21, which sets as specific objective to promote knowledge about and combat discrimination on the basis of sexual orientation, gender identity and expression and gender characteristics. The Committee asks the Government to provide information on the application of section 24(1) of the Labour Code and section 2 of Law No. 38/2018 in practice, including by providing information on the number, nature and outcome of any cases or complaints of discrimination on the grounds of “gender identity”, “gender characteristics” and “gender expression” in employment dealt with by the labour inspectorate, the courts or any other competent authority. It asks the Government to provide information on any measures implemented to prevent and address discrimination on the grounds of sexual orientation, gender identity and expression and gender characteristics in employment and occupation, including in the framework of the Action plan for 2018–21. The Committee asks the Government to provide information on the measures taken to raise awareness of these new legislative provisions among workers, employers and their representative organizations, as well as among law enforcement officials and competent authorities.

Sexual harassment. The Committee previously noted the initiatives and awareness-raising activities carried out by the Commission for Equality in Labour and Employment (CITE) on harassment in the workplace and requested the Government to continue to foster awareness on preventing and combating sexual harassment in the workplace. The Committee notes the Government’s indication in its report, that a transnational project on “Sexual and psychological harassment in the workplace” was implemented from January 2014 to April 2016, in collaboration with the CITE, the Norwegian Association of Local and Regional Authorities (KS) and the Working Conditions Authority (ACT), to identify and define sexual and psychological harassment in the labour market in Portugal; raise awareness of the issue among strategic target populations; and exchange experience and good practices between Portugal and Norway. The Government adds that as a result of the project: (i) training was provided to targeted groups, such as social partners, employers and public administration officials; (ii) a specific study was undertaken; (iii) a training manual was issued on “preventing and combating sexual and psychological harassment in the workplace”; and (iv) a specific website was set up where instances of harassment in the workplace may be reported. The Committee notes that the National Strategy for Equality and Non-Discrimination for 2018–30 (“Portugal + Igual” – ENIND), approved on 21 May 2018 by Resolution No. 61/2018 of the Council of Ministers, sets as specific objective to prevent and address violence against women and domestic violence, including by promoting a culture of non-violence and tolerance. The Committee welcomes the adoption of Law No. 73/2017 of 16 August 2017 strengthening the legislative framework for the prevention of harassment which, inter alia: (i) introduces an obligation on companies with more than seven employees to adopt a code of conduct on harassment in the workplace and commence a disciplinary process when an alleged situation of harassment in the company is reported; (ii) increases the rights to compensation for harassment victims; and (iii) grants protection against victimization and dismissal to the victims and witnesses of harassment practices. It notes, from the 2019 Government’s report under the national-level review of implementation of the Beijing Declaration, that a “Guide for the elaboration of the Code of good Conduct for the prevention and fight against harassment at work” was published in 2018. The Committee notes from the statistical information provided by the Government that between 2014 and 2017, the CITE received only three complaints relating to sexual harassment. Welcoming the initiatives undertaken, the Committee asks the Government to continue to provide information on the proactive measures taken, including within the framework of the National Strategy for Equality and Non-Discrimination for 2018–30, to foster awareness among employers and workers and their organizations with respect to the importance of preventing and combating sexual harassment, including by providing information on the application of the provisions of Law No. 73/2017, as well as on the procedures and remedies available to harassment victims. It asks the Government to provide information on the number of codes of conduct on harassment in the workplace that have been adopted by companies, as well as on their impact. The Committee asks the Government to provide information on the number of cases of sexual harassment at work dealt with at the enterprise level, as well as by the labour inspectors, the courts or any other competent authority, the sanctions imposed and remedies granted.

Article 1(1)(b). Additional ground of discrimination. Disability. The Committee recalls that section 24(1) of the Labour Code prohibits discrimination on the ground of disability. It notes, however, that in its 2016 concluding observations, the United Nations (UN) Committee on the Rights of Persons with Disabilities (CRPD) expressed concern about: (i) discrimination and inequality in employment and the conditions of work of persons with disabilities, in particular women; (ii) the working conditions of persons with disabilities in the Occupational Activity Centres, including their average wage; and (iii) the fact that when persons with disabilities exercise their right to work and engage in employment the most common outcome is employment in such centres (CRPD/C/PRT/CO/1, 20 May 2016, paragraph 51). The Committee asks the Government to provide information on the proactive steps taken to prevent and address discrimination against persons with disabilities in all aspects of employment and occupation, including access to employment, access to vocational training, and terms and conditions of employment, and on the results achieved. It asks the Government to provide updated information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Articles 2 and 3. Equality of opportunity and treatment for men and women. The Committee previously noted the range of legislative and policy measures adopted by the Government to improve access for women to employment and to better reconcile work and family responsibilities. These included, in particular, the Fifth National Plan for Gender Equality, Citizenship and non-Discrimination 2014–17. While noting the Government’s indication that the implementation reports of the Fifth National Plan show that the overall implementation rates were good, the Committee notes that the CGTP-IN points out that the economic and financial crises, combined with increasing unemployment and labour instability, have resulted in an increase in discrimination, in particular towards more vulnerable groups such as women. The CGTP-IN refers to the persistence of gender stereotypes and occupational gender segregation, as well as discrimination in recruitment and promotion, and adds that while 41 per cent of male graduates are employed in senior management positions, only 29 per cent of women graduates are employed in such positions. The Committee notes that the CIP indicates that occupational segregation is a challenge and highlights the need for addressing cultural stereotypes to ensure that women and men have access to a greater diversity of careers, including by enhancing girls and women access to technical and scientific occupations and promoting entrepreneurship for women and men. The Committee notes, from Eurostat, that in 2017 the employment rate for women remained below that of men (71.6 per cent for women compared to 77.9 per cent for men), while the unemployment rate of women was still high (11.3 per cent for women compared to 8.6 per cent for men). It notes that the National Strategy for Equality and Non Discrimination for 2018–2030 (ENIND) specifically aims to promote equality between women and men, including by: (i) eliminating sex discrimination and promoting equality between women and men in policies and actions, at all levels of public administration; (ii) guaranteeing conditions for a full and equal participation of women and men in the labour market and in professional activity; (iii) guaranteeing conditions for education and training that are free from gender stereotypes; and (iv) promoting equality between women and men in higher education and in scientific and technological development. The Government adds that the Human Potential Operational Programme POPH, revised in February 2014, also increased support for the promotion of gender equality through Priority Area 7 on gender equality which sets, as a specific general objective, the promotion of equal opportunity in hiring and employment with a focus on combating horizontal and vertical labour market segregation. The Committee notes with interest the adoption of Law No. 62/2017 which defines, in sections 4 and 5, minimum thresholds for both sexes in boards and supervisory bodies of public companies and other public entities (33 per cent as of 1 January 2018) and private listed companies (20 per cent as of 1 January 2018 and 33 per cent as of 1 January 2020). It notes that if the levels set are not achieved within the indicated time frames the company may be subjected to fines and other administrative sanctions (section 6 of the Law). It welcomes the adoption of Law No. 26/2019 of 28 March 2019, which defines a minimum 40 per cent threshold of women and men among top civil servants in public administration, and in public higher education institutions and associations. The Government further indicates that, in order to encourage employers in achieving gender equality, the Equality and Quality Award (PIQ) continues to publicly recognize companies which, in addition to complying with the legislation on gender equality and non-discrimination, actively promote gender equality in labour, employment and occupational training. The Committee notes the Government’s indication that as result of the partnership between the CITE and private sector organizations and public enterprises, the Gender Equality Project (IGEN) – Business Forum for Gender Equality was established in order to bring together enterprises and organizations to promote measures fostering gender equality and combating all forms of gender-based discrimination in employment. It further notes that since June 2017, the CITE initiated a training cycle called "Equality Workshops" aimed at analysing gender gaps in labour market indicators, combating labour segregation and discrimination and promoting gender equality by deconstructing gender stereotypes and preconceived ideas. The Committee notes, from the statistical information provided by the Government, that between 2014 and 2017, 422 complaints were received by the CITE of which 82 involved discrimination based on sex. It further notes, from the statistical information of the Working Conditions Authority forwarded by the Government in its report on the application of the Equal Remuneration Convention, 1951 (No. 100), that the number of labour inspections decreased from 39,306 in 2015 to 25,339 in 2016, and that between 2014 and 2016, 85 cases of infractions concerning equality and non-discrimination were identified, of which seven related to discrimination in access to employment, 17 related to prohibition of discrimination and one case related to equality in conditions of employment. The Committee notes that the UGT expresses concern with regard to the decrease in the number of labour inspections targeting vulnerable groups over the last years and points out that a lack of judicial decisions does not mean a lack of discrimination in practice, but may be linked to the fact that victims are reluctant to make complaints as a result of stigmatization, costly procedures and a lack of confidence. The Committee asks the Government to continue to provide information on the steps taken to promote equality of treatment and opportunity between men and women in law and in practice, and on the results achieved, in particular in order to address gender stereotypes and vertical and horizontal occupational gender segregation. It asks the Government to provide information on the specific measures adopted to raise awareness, in particular among women, of the principle of the Convention and the available procedures and remedies, as well as on the number, nature and outcome of cases of gender discrimination in employment detected by the labour inspectors or dealt with by the CITE, the courts or any other competent authorities. The Committee asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

Equality plans. The Committee previously noted that following the adoption of Resolution No. 19/2012 of 8 March 2012, which obliges enterprises in the public sector and encourages enterprises in the private sector to adopt plans to achieve gender equality, including in management positions and to evaluate their implementation, approximately 100 plans were evaluated in the private and the public sectors in 2012. Regretting the lack of updated information provided by the Government on the number and nature of equality plans adopted, the Committee notes that section 7 of Law No. 62/2017 of 1 August 2017, imposes on companies the duty to develop their annual equality plans in order to achieve equal opportunities and equal treatment of women and men, and to promote the reconciliation of professional and family life within the company. Noting that enterprises in both the public and private sectors are now required to develop annual equality plans, the Committee asks the Government to provide information on the number and nature of gender equality plans adopted in public and private enterprises, including information on the results achieved.

Equality of opportunity and treatment on the grounds of race, colour, national extraction or social origin. Roma people. The Committee previously noted that the National Strategy for Integration of Roma Communities 2013–20 (ENICC) includes several measures with a view to improving employment and education of members of the Roma community as well as the establishment of the Observatory of Roma Communities (OBCIG), and requested the Government to continue to take specific measures to foster the integration of Roma people, particularly with respect to access to employment and education. The Committee notes the Government’s indication that for the period 2013–14, 77 per cent of the targets set in the ENICC were met or exceeded, in particular concerning the promotion of the fight against discrimination and awareness-raising activities. The Government, however, adds that the partners responsible for the implementation of the ENICC have jointly identified a number of challenges in pursuing the established priorities, including budgetary constraints; the need to involve a broader range of public and private actors and the need to establish a mechanism for the participation and involvement of civil society organizations, in particular Roma associations. The Government indicates that in 2015, within the framework of the ENICC, the Office of the High Commissioner for Migration launched the National Strategy Support Fund (FAPE), which grants financial support to experimental and innovative projects designed to promote and combat discrimination against Roma communities. As a result, three projects were established in 2016: (i) two projects concerning the promotion of vocational training; and (ii) a project aimed at establishing a Roma entrepreneurship website to promote information and awareness-raising and to share good practice. The Committee notes that, in 2017, the Office of the High Commissioner for Migration launched the Roma Associations Support Programme to encourage the active participation of Roma Associations in ENICC’s implementation. It further notes that several activities were undertaken to foster the employability of Roma people under the ENICC, which was revised in 2018 – with more action-based measures, clearer indicators and yearly targets – and the duration of which was extended to 2020–22. The Government further refers to the adoption of Act No. 93/2017 of 23 August 2017, revising the legal framework on prevention, prohibition and combating of discrimination based on the grounds of racial or ethnic origin, colour, nationality, descent and place of origin. The Government adds that in implementing the Act the Office of the High Commissioner for Migration took on the task of coordinating interventions in all sectors regarding prevention, inspection and punishment of acts of discrimination, and that the membership of the Commission was broadened to include representatives from the Roma community. The Committee notes, from the 2019 report submitted by the Government in the context of the Universal Periodic Review (UPR), that between January and August 2018, the Commission for Equality and Against Racial Discrimination (CICDR), received 211 complaints, which corresponds to an increase of 75.8 per cent compared to the same period in 2017, attributed to awareness raising campaigns and training (A/HRC/WG.6/33/PRT/1, 4 March 2019, paragraph 29). It notes that, in the context of the UPR, the Advisory Committee on the Framework Convention for the Protection of National Minorities of the Council of Europe highlighted the need for resolute measures to put an end to discrimination against Roma regarding access to adequate education and employment, and recommended that the Government put an end to the practice of placing Roma pupils in separate classes, and identify measures to prevent absenteeism and early dropout from school among Roma children, in particular girls. The Committee notes that similar concerns were expressed by the European Commissioner for Human Rights and the European Union Agency for Fundamental Rights (A/HRC/WG.6/33/PRT/3, 20 February 2019, paragraphs 16 and 53). The Committee notes that the United Nations Human Rights Council, in the context of the UPR, recommended that the Government strengthen measures to combat the discrimination against, and segregation of, Roma people and take effective steps to improve their access to education and employment (A/HRC/42/7, 4 July 2019, paragraph 137). The Committee asks the Government to continue to take specific steps to ensure effective equality of opportunity and treatment of Roma people in employment and occupation, particularly with respect to access to employment and vocational training and education. It asks the Government to provide information on any steps taken to that end, within the framework of the National Strategy for Integration of Roma Communities 2013–22 or otherwise, as well as the results achieved, by providing a copy of any reports evaluating their impact. The Committee also asks the Government to provide information on the number, nature and outcome of cases of discrimination against Roma people dealt with by the CICDR, the labour inspectors, the courts or any other competent authority, as well as statistical data on the participation of Roma people in education and vocational training, as well as in the labour market, disaggregated by sex.

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. Collective agreements and gender equality. The Committee previously noted that, pursuant to the amendments made to section 479 of the Labour Code, a preliminary evaluation of collective agreements shall be undertaken by the CITE, and any provision found not to comply with the law in terms of equality and non-discrimination, shall be referred to the Attorney-General’s Office. It further noted that an information guide on “Drafting Provisions of Collective Labour Regulation Instruments with a Gender Equality and Non-Discrimination Perspective” was launched in 2012. The Committee notes the Government’s indication that in 2016, 215 instruments of collective labour regulation were assessed by the CITE, of which 19 contained a total of 48 unlawful provisions and the contracting parties were notified and asked to respond. The Government adds that, in most situations where the CITE has considered that the provisions were discriminatory, the parties have accepted the opinion sent to them and voluntarily made amendments, without the need for recourse to legal channels. Furthermore, in 2014, training on mainstreaming gender equality into instruments of collective labour regulation was provided. The Committee asks the Government to continue to provide information on the evaluation of collective agreements from a gender perspective, on the follow-up given to those provisions of the collective agreements found not to be in compliance with equality and non-discrimination provisions, and on the impact of this process on improving equality of opportunity and treatment between men and women through collective agreements.