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

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Chypre (Ratification: 1968)

Autre commentaire sur C111

Observation

Demande directe

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Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. For a number of years, the Committee has been drawing the Government’s attention to the fact that the ground of “social origin” is not included as a ground of discrimination in the equality legislation. The Committee notes the Government’s reiterated statement, in its report, that protection against discrimination on the ground of social origin is already guaranteed by articles 28(2) and 169 of the Constitution which provide respectively for the right of any person not to be discriminated against both directly and indirectly on certain grounds (“… social class or on any ground whatsoever”), and that international agreements prevail upon national legislation. The Committee recalls that constitutional clauses which expressly provide that international agreements and treaties prevail over national law, while important, do not exempt States from adopting national legislation to implement the principles laid down in the Convention. Furthermore the Committee, once again, draws the Government’s attention to the fact that constitutional provisions providing for equality of opportunity and treatment, although important, have generally not proven to be sufficient to address specific cases of discrimination in employment and occupation. The Committee wishes to recall that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (see General Survey on the fundamental Conventions, 2012, paragraphs 850–853). The Committee therefore asks the Government, once again, to take the necessary steps to ensure that the legislation includes an explicit prohibition of direct and indirect discrimination on at least all the grounds enumerated in Article 1(1)(a) of the Convention, in particular social origin. It asks the Government to provide information on any progress made in that regard. In the meantime, the Committee asks the Government to provide information on the steps taken to ensure protection against direct and indirect discrimination in employment and occupation on the ground of social origin, in practice, and to provide a copy of any relevant administrative or judicial decision in that respect.

Discrimination based on sex. Sexual harassment. The Committee previously requested the Government to provide information on the practical measures taken to prevent and eliminate sexual harassment in the workplace, in particular against domestic workers, and on any steps taken or envisaged to ensure effective protection of workers seeking judicial and administrative remedies. The Committee notes the Government’s indication that several conferences and training events aimed at combating sexual harassment in the public sector were organized by the Ombudsperson who in July 2018 published a Code of Practice for the prevention and handling of sexual harassment and harassment throughout the public sector. The Government adds that the Gender Equality Committee in Employment and Vocational Training has focused its action on informing employers and employees on preventing and dealing with sexual harassment at the workplace, and implemented several practical measures to that end. The Committee notes, however, that, according to the statistical information provided by the Government, the number of complaints concerning sexual harassment decreased, with only 20 complaints received between 2014 and the end of 2017, mainly from domestic workers, most of which lacked supporting evidence. The Committee recalls that the low level or absence of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist; rather it is likely to reflect the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to, or the inadequacy of, complaints mechanisms and means of redress, or fear of reprisals (see General Survey, 2012, paragraph 790). The Committee further notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) remained concerned at the prevalence of sexual harassment in the workplace and the lack of effective measures to deal with such harassment and to inform women of their rights, and recommended that the Government develop a safe system for filing complaints relating to sexual harassment in the workplace and to ensure that victims have access to effective mechanisms and remedies (CEDAW/C/CYP/CO/8, 25 July 2018, paragraphs 36(f) and 37(g)). Recalling the gravity and seriousness of sexual harassment, the Committee asks the Government to provide information on: (i) any steps taken to prevent and address sexual harassment in the workplace, both in the public and private sectors, and increase public awareness regarding sexual harassment, as well as any procedures and mechanisms available for victims to seek redress; and (ii) the number of complaints concerning cases of sexual harassment, in particular from domestic workers, dealt with by the labour inspectorate, the Ombudsperson and the courts, specifying the penalties imposed and compensation awarded.

Sexual orientation. Recalling that section 6(1) of the Equal Treatment in Employment and Occupation Law No. 58(1)/2004 prohibits direct and indirect discrimination in employment on the ground of sexual orientation, the Committee notes that, according to the European Commission against Racism and Intolerance’s (ECRI) report published on 7 June 2016, discrimination against lesbian, gay, bisexual and transgender (LGBT) persons in the field of employment remains a widespread problem (CRI(2016)18, paragraph 115). The Committee asks the Government to provide information on the application of section 6(1) of the Equal Treatment in Employment and Occupation Law No. 58(1)/2004 in practice and, in particular, on any measures adopted or envisaged to combat stereotypes and prejudices with a view to eliminating discrimination on the basis of sexual orientation, and their impact on the integration of LGBT workers in the labour market. It also asks the Government to provide information on the number and nature of complaints regarding cases of discrimination on the ground of sexual orientation in employment and occupation dealt with by the labour inspectors, the Ombudsperson or the courts, specifying the penalties imposed and compensation awarded.

Article 1(2). Inherent job requirements. The Committee previously noted that the schedule to section 4(2) of Law No. 205(I)/2002 on Equal Treatment of Men and Women in Employment and Vocational Training excludes certain occupations from its provisions on access to employment, vocational training and self employment, such as artistic activities, personal services or prison wardens, but that the law provides for a re-examination of this list of exclusions at least every five years to determine whether, in the light of social developments, they remain justified. The Committee has been repeatedly requesting information regarding the review by the Labour Advisory Board of this list. The Committee notes the Government’s statement that, following its denunciation of the Underground Work (Women) Convention, 1935 (No. 45), on 11 July 2017, paragraph 7 of the schedule, providing for the exclusion of “the employment of women in underground mining operations” from the scope of application of the law, will be deleted. While welcoming this information, the Committee notes that no information is provided on any review of the other occupations specified in the schedule to section 4(2). It again recalls that systematic application of requirements involving one or more of the grounds of discrimination set out in the Convention is inadmissible, that careful examination of each individual case is required and that distinctions must be determined on an objective basis and take account of individual capacities (see General Survey, 2012, paragraphs 827–831). The Committee therefore asks the Government to provide information on any review planned or undertaken by the Labour Advisory Board of the schedule to section 4(2) of the Law on Equal Treatment of Men and Women in Employment and Vocational Training, as well as on the outcome of any such review. It asks the Government to provide information on the number, nature and outcome of any cases regarding the application of these exclusions dealt with by courts or any other competent authority.

Articles 1 and 2. Equality of opportunity and treatment irrespective of race, colour or national extraction. Roma. Referring to its previous comments on the activities undertaken to improve knowledge and awareness among ethnic and national minorities, including the Roma people, about the anti-discrimination and equality legislation, as well as existing mechanisms and procedures for complaints, the Committee notes with regret the lack of information provided by the Government on any activity undertaken in this regard. However, it notes that several UN and European bodies have recently expressed concern about: (i) persistent stigmatization and discrimination against members of the Roma community in access to education, training, and employment; (ii) low school enrolment and attendance and high dropout rates; and (iii) persistent barriers, in particular language barriers, faced by the Roma people when claiming their rights, as they have little or no information on legal aid and access to justice, (A/HRC/WG.6/32/CYP/3, 7 November 2018, the ECRI and Council of Europe Commissioner for Human Rights’ observations, paragraph 55; CEDAW/C/CYP/CO/8, 25 July 2018, paragraphs 16(b), 34(d), and 36(e); CERD/C/CYP/CO/23-24, 2 June 2017, paragraph 18; and E/C.12/CYP/CO/6, 28 October 2016, paragraph 13). It further notes that, in April 2019, the Human Rights Council, in the context of the Universal Periodic Review (UPR), recommended that the Government develop a comprehensive strategy for the inclusion of members of the Roma community to ensure that they have access to education and employment without discrimination and stigmatization (A/HRC/41/15, 5 April 2019, paragraph 139). The Committee asks the Government to strengthen its efforts to ensure that acts of discrimination against Roma people in employment and occupation are effectively prevented and addressed, and provide information on the impact of any actions taken to enhance equal access to Roma people to education, training and employment, including through the development and adoption of a comprehensive strategy for the inclusion of members of the Roma community. It asks the Government to provide information on the activities undertaken to that end, including in collaboration with employers’ and workers’ organizations, as well as statistical data, disaggregated by sex, on the labour market situation of Roma people.

Migrant workers and national minorities. The Committee previously noted that information leaflets on the equal treatment legislation were made available in all district and regional labour offices and that equality inspectors were available at these locations to provide advice on equality issues, but feared that such measures were not, by themselves, sufficient to ensure protection against discrimination based on race, colour or national extraction, in particular against non-European Union workers, Turkish Cypriots and members of national minorities. In that regard, the Committee noted that the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities (CoE-ACFC) found that the continued fixation on classifying citizens into either Greek Cypriots or Turkish Cypriots in all spheres of life, even when not strictly called for by the Constitution, contradicted the existing diversity in Cypriot society and, moreover, appeared to create practical difficulties. It feared that the continued division of society along ethnic lines may encourage ethno centric sentiments that are not conducive to the formation of a cohesive society (A/HRC/WG.6/32/CYP/3, paragraph 12). The Committee notes that several UN and European bodies have recently expressed concern about: (i) persistent discrimination in access to education and training and employment and promotional opportunities against non-European Union migrants who continue to experience labour exploitation, especially those working in the farming and agricultural sector; (ii) increasing discriminatory attitudes and racial stereotypes relating to persons of foreign origin; (iii) persisting barriers, in particular language barriers faced by migrants when claiming their rights, who have little or no information as regards legal aid and access to justice; and (iv) the low number of complaints and prosecutions, as well as convictions despite the prevalence of trafficking in migrant workers for the purposes of sexual and labour exploitation and the high number of identified trafficking victims (A/HRC/WG.6/32/CYP/3, 7 November 2018, paragraph 18; CEDAW/C/CYP/CO/8, 25 July 2018, paragraph 16; CERD/C/CYP/CO/23-24, 2 June 2017, paragraph 16; and E/C.12/CYP/CO/6, 28 October 2016, paragraph 33). It notes that, in April 2019, the Human Rights Council, in the context of the Universal Periodic Review (UPR), also recommended that the Government intensify its efforts to prevent and combat trafficking in migrant workers, particularly women. The Committee asks the Government to strengthen its efforts to prevent and address stereotypes and discrimination based on race, colour or national extraction, and effectively ensure equality of opportunity and treatment in employment and occupation for migrant workers, in particular non-European Union migrant workers, and members of national minorities, such as Turkish Cypriots, by enhancing their access to a wide range of occupations in the labour market and their participation in education and vocational training. It asks the Government to provide information on the specific steps taken to that end as well as the results achieved, including by providing a copy of any reports evaluating their impact. The Committee also asks the Government to provide information on any public awareness-raising activities undertaken on the relevant legislative provisions, the procedures and remedies available, targeting in particular non-European Union migrant workers and national minorities, as well as on the number and nature of cases or complaints of discrimination on the grounds of race, colour or national extraction dealt with by the labour inspectors, the Ombudsperson, the courts or any other competent authority, the penalties imposed and the remedies granted.

Migrant domestic workers. The Committee notes the Government’s statement that more than 80 per cent of the complaints from non-European Union workers examined by the Department of Labour in 2015, concerned domestic migrant workers. It also notes that, according to the information available from the Civil Registry and Migration Department website: (i) no more than two changes of employer are allowed during the first six-year period of employment in the case of a domestic worker and a change of employer is not permitted after six years of employment; and (ii) the minimum salary set for foreign domestic workers is almost three times lower than the statutory minimum wage. The Committee further notes that, in their 2018 and 2017 concluding observations respectively, the CEDAW and the UN Committee on the Elimination of Racial Discrimination (CERD) expressed concern about: (i) the persistent exploitation faced by migrant domestic workers and the difficulties they encounter in changing employers; (ii) the obstacles impeding access to justice for women migrant domestic workers, including the fear of detention and deportation while legal proceedings are pending; as well as (iii) the lack of regular labour inspections to monitor the working conditions and employment contracts of women migrant domestic workers. They recommended that the Government take concrete steps to strengthen the capacity of labour inspectors and the police to improve oversight of the working conditions of domestic workers and protect them against labour exploitation and to end the restrictions imposed on domestic workers wishing to change employers (CEDAW/C/CYP/CO/8, 25 July 2018, paragraphs 38 and 39(c); and CERD/C/CYP/CO/23-24, 2 June 2017, paragraphs 22 and 23). In that regard, the Committee notes that, in its report made in the context of the UPR, the Government referred to the adoption of a New National Action Plan for Gender Equality (2018–21) which defines as a key objective “Empowering the Vulnerable Groups of Women”, including migrant women, and indicated that the ratification of the ILO Domestic Workers Convention, 2011 (No. 189), was under consideration (A/HRC/WG.6/32/CYP/1, 13 November 2018, paragraphs 5, 8 and 11). The Committee asks the Government to effectively ensure equality of opportunity and treatment in employment and occupation for migrant domestic workers, in particular concerning their terms and conditions of employment, by enhancing their access to a wide range of occupations in the labour market, including by removing the restrictions imposed on domestic workers wishing to change employers, as well as their participation in education and vocational training. It asks the Government to provide information on the specific steps taken or envisaged to ensure that migrant domestic workers can enjoy full equality of opportunity and treatment and access to all types of employment on the same footing as other workers without discrimination. The Committee also asks the Government to provide information on access for domestic workers to remedies, as well as on the number, nature and outcome of complaints concerning discrimination in employment made by domestic workers.

General observation of 2018. With regard to the above issues, and in more general terms, 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

Articles 2 and 3. Equality of opportunity and treatment between women and men. Reconciliation of work and family responsibilities. The Committee takes note of the Protection of Maternity (Amendment) Laws of 2017 and 2018 which extended the protection afforded to pregnant women by, respectively, providing surrogate mothers with 14 weeks of maternity leave and extending the prohibition of dismissal of the mother from three to five months after the end of her maternity leave. It further notes with interest the adoption of the Paternity Leave Law No. 117(I) of 2017, and more particularly its section 3(1), entitling working fathers to two consecutive weeks of paid leave. The Government adds that, in 2016, the Ombudsperson launched a campaign regarding the rights of pregnant women and new mothers. While welcoming this information, the Committee notes that, as highlighted by the European Commission, the gender gap in unpaid working time is still one of the highest in the European Union (EU), being estimated over 15 hours per week (European Commission, 2019 Report on equality between men and women in the EU, page 11). It further notes that, in its 2018 concluding observations, the CEDAW expressed concern with regard to: (i) the deep-rooted discriminatory stereotypes concerning the roles and responsibilities of women and men in the family and in society; (ii) the persistent discrimination in the labour market against mothers and pregnant women in relation to hiring, career advancement, conditions of employment, pay and denial of paid maternity leave, particularly in the private sector; and (iii) the periods of parental leave taken by men, which remain insignificant despite the new legislation on paternity leave (CEDAW/C/CYP/CO/8, 25 July 2018, paragraphs 24 and 36). The Committee asks the Government to continue to provide information on the measures taken to improve the reconciliation between work and family responsibilities, both in the public and private sectors, as well as to prevent and address any discrimination against mothers and pregnant women, and on the impact thereof. It also asks the Government to provide information on awareness-raising activities undertaken, including among workers, employers, and their respective organizations, to address stereotyped assumptions that the main responsibility for family care lies with women. The Committee asks the Government to provide statistical information, disaggregated by sex, on the number of workers with family responsibilities who have taken maternity or paternity leave, as well as parental leave.

Enforcement. Referring to its previous comments concerning the reasons for the relatively low admissibility rate of the complaints submitted to the Equality Body, the Committee notes the Government’s statement that it can be explained by the lack of awareness about the Ombudsperson’s competence as an Equality Body as well as by the fear of retaliation. The Government adds that from March 2011 to August 2016, 44 per cent of the complaints received by the Ombudsperson related to gender discrimination against women, including sexual harassment, discrimination based on family status and pregnancy and maternity. In 65 per cent of cases, after the investigation was completed, the Ombudsperson decided to terminate the investigation. The Committee however notes that, in its conclusions published on 6 June 2019, the ECRI expressed concern about the fact that the Ombudsperson did not carry out any activities aimed at supporting vulnerable groups or any communication activities, and did not issue any publications or reports, including annual reports, or recommendations on discrimination issues since 2016 (CRI(2019)23, page 5). The Committee asks the Government to provide information on the number of cases of discrimination dealt with by the labour inspectorate, the Equality Body, the courts or any other competent authorities, specifying the alleged ground of discrimination, as well as on the sanctions imposed and remedies granted. It also asks the Government to provide specific information on: (i) the concrete measures taken to inform and raise awareness of the principles of non discrimination and equality in employment and occupation, particularly among employers, workers and their respective organizations, and the general public; and (ii) any capacity-building and training activities provided to employees, judges, labour inspectors and legal practitioners on the detection and treatment of cases of discrimination, the elimination of discrimination and the promotion of equality in employment and occupation.