Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Luxembourg (Ratification: 2001)

Autre commentaire sur C111

Observation

Demande directe

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Article 1(1)(a) of the Convention. Sexual harassment and other forms of violence at work. The Committee previously noted that the Act of 23 July 2015 assigns to gender equality delegates, or failing that, to staff representatives, a role in the prevention, protection and assistance within the enterprise in relation to sexual harassment. It requested the Government to provide information on the measures taken to raise awareness of and promote the implementation of the Act of 2015 at the enterprise level. The Committee notes the Government’s statement, in its report, that the Ministry of Equality between Women and Men (MEGA) offers training on gender equality, in particular for gender equality delegates in enterprises. The Government indicates that a Bill on protection against moral harassment was elaborated in 2018 in order to fight against mobbing at work and that awareness-raising activities were undertaken in that regard. It adds that, in the meantime, courts tend to hold liable an employer in case of moral harassment perpetrated against an employee by the employer or other employees, on the basis of section 1134 of the Civil Code, considering that it is the employer’s obligation to take all necessary measures to prevent or put an end to any form of harassment among his or her employees. The Committee also notes the judicial decisions forwarded by the Government in that regard. While welcoming the ongoing developments regarding prevention and prohibition of moral harassment, the Committee regrets that the Government did not provide information regarding sexual harassment more specifically. Recalling its previous comments on the low number of complaints on sexual harassment, it notes, from the 2019 annual report of the Inspectorate of Labour and Mines (ITM), that the ITM received 515 requests related to harassment of which 40 were transferred to the Inspections, Controls and Surveys (ICE) service. It observes however that no specific statistical data is available on sexual harassment. In that regard, the Committee notes that, in its 2019 annual report, the Centre for Equality of Treatment (CET) continues to highlight the lack of capacity on the part of the ITM to penalize and prosecute perpetrators of sexual harassment, and again recommends that legislative measures shall be taken to provide for specific penalties and ensure that the ITM has the necessary means at its disposal to carry out its functions. As regards the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the Luxembourg Confederation of Independent Trade Unions (OGB–L) and the Luxembourg Confederation of Christian Trade Unions (LCGB), on the one hand, and the Union of Enterprises of Luxembourg (UEL), on the other, the Committee again regrets the lack of information provided by the Government on its implementation. The Committee asks the Government to provide information on the specific measures taken to effectively prevent and combat sexual harassment and other forms of violence at work, including by raising awareness of workers, employers and their respective organizations, in virtue of the provisions of the Act of 23 July 2015 and of the collective agreement of 25 June 2009. It also asks the Government to provide information on the impact of the measures undertaken to that end, on the number of the gender equality delegates designated at the enterprise level and their activities, and on the number of complaints or cases of sexual harassment at work dealt with by the Inspectorate of Labour and Mines, the courts or any other competent authorities, specifying the remedies granted and the penalties imposed to perpetrators.

Article 2. Equality of opportunity and treatment for women and men. The Committee previously noted the adoption of the Equality Plan for Women and Men 2015–18 and the Municipal Action Plan for Equality for Women and Men 2015–18 adopted by the city of Luxembourg. The Committee notes that the Government’s report does not contain any information on the measures taken to promote gender equality in employment and occupation, in particular in the context of the above-referred action plans. However, it notes that a new National Action Plan for Equality between Women and Men was launched in July 2020, the implementation of which will be assessed every three years and for the first time in 2022. It notes more particularly that the new action plan sets as specific objectives to: (1) fight against gender stereotypes; (2) promote equality in education; and (3) enhance equality in employment. It further notes that a new Municipal Action Plan for Equality for Women and Men 2019–2022 was adopted by the city of Luxembourg. As regards measures taken to combat stereotypes and prejudices concerning women’s occupational aspirations and capabilities, it notes the Government’s statement that, as provided for under its Coalition Agreement 2018–2023, educational projects will be implemented by the MEGA in the coming years to promote gender neutral professional orientation and equality in education and vocational guidance for children and adolescents. As regards the target of 40 per cent of women employed in supervisory posts in the public sector by 2019, the Government indicates that the rate of women on the boards of directors of public institutions increased from 27.41 per cent in 2015 to 34.69 per cent in 2018. Furthermore, the percentage of women representing the State in public establishments increased from 30.34 per cent in 2015 to 40.19 per cent in 2018. The Committee welcomes this information. It however notes, from Eurostat, that, in 2018–2019, only 23 per cent of managers, 13 per cent of board members and 6 per cent of senior executives were women. Furthermore, it notes that, according to the 2019 Gender Equality Index of the European Institute for Gender Equality (EIGE), the concentration of women and men in different sectors of the labour market remains an issue, as around 26 per cent of women work in education, health and social work (compared to 9 per cent of men), while only 4 per cent of them work in science, technology, engineering and mathematics (STEM) occupations (compared to 28 per cent of men). In that regard, the Committee notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed specific concerns about : (1) the concentration of women in traditionally female-dominated fields of study and career paths; and (2) the low levels of representation of women in decision-making positions in both the public sector and on the boards of major enterprises (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 41). The Committee asks the Government to provide detailed information on the measures taken to effectively promote gender equality in education, employment and occupation, including by combating gender stereotypes and occupational segregation, as well as increasing the participation of women in decision-making positions, in particular in the framework of the new National Action Plan for Equality between Women and Men of July 2020 and the Municipal Action Plan for Equality for Women and Men 2019-2022. It asks the Government to provide information on any study or assessment undertaken on the impact of such measures. The Committee further asks the Government to provide statistical information on the distribution of men and women in employment, disaggregated by economic sector and occupation.

Affirmative actions in favour of gender equality. The Committee previously noted that several public and local administrations as well as private enterprises had taken part in the voluntary Affirmative Action Programme since 2011 and that “affirmative action” label was awarded to enterprises which had fully implemented their affirmative action plans. The Committee welcomes the Government’s indication that the following measures have been identified as having a positive impact on gender equality at the workplace: (1) promoting gender diversity at all levels and recruiting men and women in atypical professions; (2) integrating gender equality in the enterprise’s charter of values; (3) ensuring individual interviews on career development taking into consideration equality of opportunity in access to training and regularly reviewing promotions of men and women; and (4) offering flexible work organization, including part-time for managerial positions and facilitating the reintegration into the workplace after a prolonged absence. The Government adds that once the action plan is completed, an evaluation of the affirmative action programme will be funded by the MEGA and enable it to assess the actual impact and effectiveness of the measures implemented as well as of the progress made in terms of organizational and structural changes. The Committee notes, from the Government’s report on the application of the Equal Remuneration Convention, 1951 (No. 100), that nearly 80 companies of all sizes and from different sectors have already participated in the programme, representing 13 per cent of the labour force. The Committee therefore asks the Government to provide information on the impact of the actions implemented in the framework of the Affirmative Action Programme on promoting equality between men and women in occupation and employment, both in the public and private sectors.

Workers with family responsibilities. The Committee previously noted that the Equality Plan for Women and Men 2015–18 provided for specific measures to enhance better conciliation between work and family responsibilities and requested the Government to provide information on the implementation of such measures. The Committee welcomes the adoption of the Act of 3 November 2016 reforming parental leave and provides that each parent can now benefit from full-time parental leave of 4 or 6 months or from part-time parental leave, under special conditions, of 8 or 12 months. As of 2016, the beneficiary of parental leave will receive a replacement income, the amount of which will vary between a minimum ceiling equal to the minimum social wage (€2,141.99) and a maximum ceiling equal to the minimum social wage increased by two thirds (€3,569.99). The Government states that the new Act introduces more flexibility allowing better conciliation between work and family responsibilities, while ensuring an income-related benefit to the beneficiary. The Committee notes, from the Intermediary Assessment of the results of the reform of parental leave published by the Luxembourg Institute of Socio-Economic Research (LISER) in February 2020, that between 2016 and 2017, the number of beneficiaries increased significantly, especially regarding fathers (+215.9 per cent) and was closed to equality between women and men in 2018 (4,875 women and 4,721 men). It further welcomes the fact that the Act of 15 December 2017 on paternity leave and leave for family reasons increased the duration of paternity leave from 2 to 10 days and introduced more flexibility in the rules applicable to leave for family reasons providing now for 35 days of leave, distributed by age groups, which can be used by any parent until the child reaches 18 years of age. The Committee notes that the new National Action Plan for Equality between Women and Men, launched in July 2020, also provides for negotiations to be held between the Government and the social partners to identify new ways to further improve the reconciliation between work and family responsibilities. It also notes that, according to Eurostat, while the gap in full-time equivalent employment rates between women and men narrowed to 13 percentage points in 2017 (45 per cent and 58 per cent respectively), the gap is still far wider for women and men in couples with children (23 percentage points). It further notes that, according to the National Statistics and Economic Studies Institute (STATEC), in 2019, 35 per cent of women were in part-time work (compared to 6 per cent of men) and for 57 per cent of them, family was the main reason for working part-time (Regards, No. 2; March 2019). In that regard, the Committee notes that, in its 2018 concluding observations, the CEDAW expressed concern about: (1) the disproportionate participation of women, especially mothers, in part-time work, illustrating an unequal division of family responsibilities between women and men; (2) regulations that exclude part-time employment workers for most managerial positions; (3) the persistence of stereotypes on the traditional roles of women and mothers as caregivers and of men as breadwinners; and (4) the low number of children between the age of 3 and school age in childcare facilities (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 25 and 41). The Committee asks the Government to continue to provide information on the steps taken or contemplated to ensure the reconciliation of work and family responsibilities, including by: (i) combating stereotypes on the traditional roles of women and men in the family, and (ii) ensuring that part-time workers are not excluded from decision-making positions, both in law and in practice. It further asks the Government to provide statistical data, disaggregated by sex, on the number of workers in the private and public sectors who have availed themselves to the possibility of parental leave and part-time work for family reasons. Finally, noting that, in its Coalition Agreement 2018-2023, the Government states that improvements will be made regarding childcare, the Committee asks the Government to provide information on the specific measures taken in that regard.

Equality of opportunity and treatment without distinction on the basis of race, colour or national extraction. Referring to its previous comments where it requested the Government to provide information on any new national integration plan, the Committee welcomes the adoption in 2018 of the Multi-Year National Action Plan on Integration which covers two areas, namely: the reception of and social support for those seeking international protection, and the integration of all non-Luxembourg citizens residing in the country. It notes the Government’s statement that one of the objectives of the new National Action Plan, which has no time limit and provides a general framework that can be revised and adapted over time, is to enhance access to training and employment for non-nationals. The Government adds that to this end the Ministry of Labour, Employment and the Social and Solidarity Economy (MTEESS) and the Employment Development Agency (ADEM), as well as a large number of actors have set up programmes designed to facilitate access to employment and entrepreneurship. The Committee welcomes this information. Noting that the Government did not provide information on the measures taken to promote equal treatment and diversity in enterprises in the context of the Diversity Charter, it observes, from the information available on the Diversity Charter website, that only 18 organizations adhered to the Charter since 2017. The Committee further notes that, in its 2018 concluding observations, the CEDAW expressed concerns about: (1) the lower school performance among migrant girls, especially those of non-European countries, and their low participation in higher education; and (2) the low employment rate among women migrants from non-European countries (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 49). Referring to its observation and recalling that colour and national extraction are not included in the grounds of discrimination prohibited by the Labour Code, the Committee asks the Government to provide information on the measures implemented, in particular in the framework of the Multi-Year National Action Plan on Integration, to prevent discrimination based on race, colour or national extraction and ensure effective equality of opportunity and treatment in access to education, occupational training and employment for persons with migration backgrounds, particularly from non-European Union countries. It also asks the Government to provide information on any other measures taken to promote equal treatment and diversity in enterprises, in particular in the context of the Diversity Charter. Finally, the Committee asks the Government to provide statistical information on the participation of migrant workers, particularly from non-European Union countries, in the labour market, both in public and private sectors, as well as in education and training.

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.

Article 3(a). Collective agreements. Collaboration with the social partners. The Committee previously noted that, while section L.162-12-4(4) of the Labour Code provides that collective agreements must contain provisions reflecting the result of collective bargaining on the application of the principle of gender equality in workplaces or enterprises to which these agreements are applicable, not all of them contain equality measures. In view of the lack of information provided by the Government on that point, the Committee again asks the Government to take steps to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures to promote equality of opportunity and treatment for women and men in employment and occupation, including through awareness campaigns, and to continue providing information on collective agreements concluded under section L.162-12-4(4) of the Labour Code.

Specialized equality body. The Committee recalls that, in its previous comments, the Committee noted that the Centre for Equality of Treatment (CET), established by Act of 28 November 2006 in order to promote, analyse and monitor equal treatment for all persons, does not have the power to deal with complaints or institute court proceedings and does not have adequate powers to gather information and evidence. It thus requested the Government to provide information on any steps taken to strengthen the role and powers of the CET to combat discrimination on the grounds listed under the Convention. The Committee notes that, according to its 2019 annual report, the CET identified 44 job vacancies which were discriminatory, 93 per cent of them on the basis of sex, and decided to carry out an awareness-raising campaigns for employers in order to combat discrimination in recruitment. The Committee notes that, in its 2019 report, the CET again regrets its lack of legal status and means of coercion. It further notes that, in their concluding observations, several UN treaty bodies also expressed concerns at the restricted capacities of the CET, which prevent it from dealing with complaints of discrimination or investigating cases of discrimination (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraph 17; and CRPD/C/LUX/CO/1, 10 October 2017, paragraph 12). Furthermore, in the framework of the Universal Periodic Review (UPR), the European Commission against Racism and Intolerance (ECRI) specifically recommended that the CET shall be given the right to hear and consider complaints; the powers necessary to conduct effective investigations; the right to initiate legal proceedings; and the right to participate in judicial and administrative proceedings. The Council of Europe’s Commissioner for Human Rights also made similar recommendations (A/HRC/WG.6/29/LUX/3, 3 November 2017, paragraphs 24 and 25). The Committee again asks the Government to provide information on any steps taken to strengthen the role of the Centre for Equality of Treatment in combating discrimination on the grounds listed in the Convention, particularly in relation to dealing with complaints and conducting investigations.

Enforcement. The Committee takes note of the statistical information provided by the Government on the number of requests forwarded to the ITM in 2018, but observes that no information refers specifically to cases of discrimination. Referring to its observation made on the application of the Convention, the Committee wishes to draw the attention of the Government to the fact that, pursuant to sections 241-10 and 254-1 of the Labour Code, the ITM is responsible for monitoring the respect of principle of equality and treatment between men and women as well as the application of the principle of non-discrimination on the grounds referred to in section 241-1, thus excluding the grounds of colour, political opinion, national extraction and social origin from its scope of action. It further notes that the 2020 European Commission country report on non-discrimination highlighted that there is still very little case law on discrimination which may be explained by the fact that victims do not have the financial means to bring a case to court, or that many people are unaware of anti-discrimination laws (European Commission, Country report on non-discrimination, 2017, pages 9 and 42). The Committee once again asks the Government to provide information on the activities of the Inspectorate of Labour and Mines and other competent authorities in relation to enforcing the legislation to combat discrimination in employment and occupation, and raising awareness among workers, employers and their organizations on all the grounds of discrimination covered by the Convention. It asks the Government to provide information on the number of complaints or cases for discrimination in employment and occupation detected or dealt with by the Inspectorate of Labour and Mines or any other competent authorities, as well as relevant extract from labour inspection reports or administrative and judicial decisions.