Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Repetition

Article 1 of the Convention. Legislative protection against discrimination. For a number of years, the Committee has been urging the Government to introduce provisions into its national legislation ensuring that all men and women, citizens and non-citizens, are effectively protected from discrimination in all aspects of employment and occupation on all the grounds enumerated in Article 1(1)(a) of the Convention. It previously drew the Government’s attention to the fact that articles 12, 14 and 17 of the Constitution addressing discrimination appear to cover citizens only and do not prohibit discrimination on the grounds of colour or national extraction. The Committee welcomes the Government’s statement, in its report, that it will discuss this matter with all relevant stakeholders exploring the possibility of amending the existing labour legislation or adopting new legislation to address discrimination in employment. The Committee notes that the National Action Plan for the Protection and Promotion of Human Rights for 2017–21 sets, as an explicit objective, the enactment legislation to guarantee the right to non-discrimination on any prohibited ground, including sex, race, ethnicity, religion, caste, place of origin, gender identity, disability or any other status in all workplaces, including in the private sector. However it draws the Government’s attention to the fact that the Action Plan does not refer to the grounds of “colour”, “political opinion”, “national extraction” and “social origin” which are enumerated in Article 1(1)(a). The Committee notes that, in their concluding observations, several United Nations treaty bodies (Committee on Economic, Social and Cultural Rights; Committee on the Elimination of Discrimination against Women; Committee on Migrant Workers; Committee on the Elimination of Racial Discrimination) also expressed concern about the national legislation which does not prohibit discrimination on the grounds of colour or national extraction and does not specifically prohibits both direct and indirect forms of discrimination (E/C.12/LKA/CO/5, 4 August 2017, paragraph 13; CEDAW/C/LKA/CO/8, 3 March 2017, paragraph 10; CMW/C/LKA/CO/2, 11 October 2016, paragraph 26; and CERD/C/LKA/CO/10-17, 6 October 2016, paragraph 8). In that regard, the Committee recalls that clear and comprehensive definitions of what constitute discrimination in employment and occupation are instrumental in identifying and addressing the many manifestations in which it may occur (see the 2012 General Survey on the fundamental Conventions, paragraph 743). The Committee urges the Government to take all the necessary steps to introduce specific legislative provisions in order to ensure that all men and women, citizens and non-citizens, are effectively protected from both direct and indirect discrimination in all aspects of employment and occupation and on all the grounds enumerated in the Convention, including colour and national extraction. It requests the Government to provide information on any progress made in this regard. The Committee again requests the Government to provide information on the number and nature of employment discrimination cases that have been handled by the Supreme Court pursuant to articles 12(1) and 17 of the Constitution, and their outcome, as well as copies of any relevant judicial decisions.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. While welcoming the voluntary Code of Conduct and Guidelines to Prevent and Address Sexual Harassment in Workplaces developed in 2013 by the Employers’ Federation of Ceylon, in collaboration with the ILO, the Committee previously raised concerns regarding the absence of effective protection of workers against sexual harassment in employment and occupation. It notes the Government’s indication that articles 11 and 12 of the Constitution, on freedom from torture and right to equality respectively, can serve as a legal basis for victims of sexual harassment, and that courts have considered demands for sexual favours for job promotion as a “bribe” punishable under the Bribery Act, 1980. While noting that these general provisions do not explicitly refer to “sexual harassment”, the Committee notes that the Government again refers to section 345 of the Penal Code covering sexual harassment, without providing the requested information in order to clarify the scope of the provision regarding the interpretation of the expression “a person in authority”. The Committee welcomes the inclusion in the National Action Plan for the Protection and Promotion of Human Rights for 2017–21 of proposed legislation to specifically deal with sexual harassment in the workplace both in the public and private sectors. The Committee also welcomes the plan to take steps to ensure that employers both in the public and private sectors introduce mandatory guidelines and appoint committees to respond to sexual harassment, in consultation with employers’ and workers’ organizations. It notes that the Policy Framework and National Plan of Action to address Sexual and Gender-based Violence for 2016–20, developed with the assistance of the United Nations Development Programme (UNDP), which highlights that women working in Export Processing Zones (EPZs) are particularly exposed to sexual harassment, also provides for the promotion of a policy to address sexual harassment in workplaces and implementing mechanisms to address sexual harassment in the private sector. However, the Committee notes that in its concluding observations the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at the high levels of gender-based violence against women, with cases of violence against women being underreported due to a lack of adequate legislation, women’s limited access to justice for reasons including fear of reprisals, limited trust in the police and judiciary, extreme delays in the investigation and adjudication of such cases, arbitrary outcomes, and very low conviction rates. The CEDAW also expressed concern at the lack of disaggregated data on sexual harassment in the workplace and on measures taken to address such cases (CEDAW/C/LKA/CO8, 3 March 2017, paragraphs 22 and 32). Referring to the National Action Plan for the Protection and Promotion of Human Rights for 2017–21, the Committee urges the Government to take the necessary steps to include specific legislative provisions that clearly define and prohibit all forms of sexual harassment in the workplace, both quid pro quo and hostile environment harassment, and requests the Government to provide information on any progress made in this regard. It again requests the Government to indicate whether section 345 of the Penal Code applies only to sexual harassment committed by a person with authority or also by a co-worker, a client or a supplier, of the enterprise. It requests the Government to provide information on any steps taken to ensure that employers both in the public and private sectors introduce mandatory guidelines and appoint committees to respond to sexual harassment, in consultation with employers’ and workers’ organizations, including within the framework of the National Action Plan for the Protection and Promotion of Human Rights for 2017–21 and the National Plan of Action to address Sexual and Gender-based Violence for 2016–20. The Committee requests the Government to provide information on the measures taken to promote women’s access to justice, including by ensuring that they have a better knowledge of their rights and of the legal procedures available, as well as the number of complaints concerning sexual harassment in the workplace lodged, penalties imposed and compensation awarded, including in the context of unjustified termination.

Article 2. Equality of opportunity and treatment between men and women. Referring to its previous comments, the Committee notes the Government’s statement that the Women’s Rights Bill was renamed Women’s Commission Bill and the draft bill was prepared in 2017 and awaiting Attorney General’s certificate on constitutionality. The Committee takes note of the Local Authorities Elections (Amendment) Act No. 1 of 2016 which includes a 25 per cent quota for women in local public bodies, but notes that, in its concluding observations, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) indicated that despite this new legislation, the participation of women in political and public life and in decision-making remains very low (E/C.12/LKA/CO/5, 4 August 2017, paragraph 23). The Committee notes that, in 2017, women represented only 37.3 per cent of the economically active population (against 62.7 per cent for men) and that despite steady economic growth, the employment rate of women remained low at 36 per cent (against 41 per cent in 2010). It notes, from the 2016 Annual Employment Survey that there is both vertical and horizontal occupational gender segregation, with women being concentrated in the agriculture, manufacturing and education sectors, as well as in elementary occupations (28.5 per cent) and clerical support (13 per cent), while only few women are employed in managerial and senior official positions (3.3 per cent) or as technical and associate professionals (4.5 per cent). It notes in particular that, in its last concluding observations, the United Nations Committee on Migrant Workers (CMW) highlighted that women in Sri Lanka continue to be compelled to become domestic migrant workers owing to the lack of equal access to employment (CMW/C/LKA/CO/2, 11 October 2016, paragraph 52). The Committee welcomes the measures included in the National Action Plan for the Protection and Promotion of Human Rights for 2017–21 which aims to increase the participation of women in employment both in the public and private sectors, including by training women for higher skilled occupations in the formal and non-traditional areas, as well as closing the gender gap in the formal sector by providing childcare facilities, encouraging more flexible work arrangements and promoting men’s roles and responsibilities in childcare and family duties. The Committee requests the Government to provide detailed information on any policy and measures adopted, in the framework of the National Action Plan for the Protection and Promotion of Human Rights for 2017–21 or otherwise, to enhance women’s access to employment and to a wider range of jobs and higher level positions, including through measures aimed at combating stereotypes regarding women’s capabilities and role in the society and better reconciling work and family responsibilities. The Committee requests the Government to provide information on the status of the adoption of the Women’s Commission Bill, as well as a copy of the new legislation once adopted. It requests the Government to provide updated statistical information on the participation of men and women in education, training and employment, both in the public and private sectors, including in the informal economy, disaggregated by occupational categories and positions, as well as on the number of women in Sri Lanka employed as domestic migrant workers (including domestic migrant workers).