Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Pakistan (Ratification: 1961)

Autre commentaire sur C111

Observation

Demande directe

Afficher en : Francais - EspagnolTout voir

Article 1 of the Convention. Protection of workers against discrimination. Legislative developments. The Committee recalls that following the 18th constitutional amendment of 2010, which devolved the power to enact laws related to labour from the federal Parliament to the provincial governments, Pakistani provincial governments adopted a series of laws such as the Balochistan Payment of Wages Act (2021), the Balochistan Minimum Wages Act (2021), the Punjab Minimum Wages Act (2019), the Sindh Minimum Wages Act (2015) and the Sindh Payment of Wages Act (2015) which prohibit discrimination in remuneration on various grounds, including but not limited to, religion, caste, ethnic background, colour, creed and sect. The Committee welcomes the adoption of these laws, which constitutes progress in the application of the Convention. It notes, however, that the provincial laws do not include all of the prohibited grounds of discrimination set out in Article 1(1)(a) of the Convention as they notably omit the grounds of national extraction and social origin. The Committee also notes that the newly adopted laws do not appear to apply to all aspects of employment, namely, access to vocational education and training, employment and particular occupations, and terms and conditions of employment as provided for in Article 1(3) of the Convention. The Committee reiterates that clear and comprehensive definitions of what constitutes discrimination in employment and occupation are instrumental in identifying and addressing the many manifestations in which it may occur (see 2012 General Survey on the fundamental Conventions, paragraph 743). Recalling that it had noted in its previous observation that political opinion was not included as a prohibited ground of discrimination by the Khyber Pakhtunkhwa Provincial Government in 2013, the Committee notes that, in response, the Government has highlighted the inclusion of “political affiliation” in laws adopted in Khyber Pakhtunkhwa and Sindh provinces. The Committee notes that protection against discrimination on the basis of political opinion is broader than protection against discrimination based on “political affiliation” (see 2012 General Survey on the fundamental Conventions, paragraph 805). The Committee requests the Government to take the necessary measures to ensure, including through the tripartite consultation committee established at the federal level, that all of the labour laws adopted by the provinces include provisions explicitly defining and prohibiting direct and indirect discrimination, applying to all aspects of employment and occupation, including at the recruitment stage, and covering all workers and at least all of the grounds set out in Article 1(1)(a) of the Convention, including political opinion. The Committee also requests the Government to provide information on any legislative developments in this regard.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes from the Government’s report that all five Pakistani provinces have laws against harassment of women at the workplace. It further notes that the Protection against Harassment of Women at the Workplace Act (2010), which covers Islamabad Capital Territory, Khyber Pakhtunkhwa and Sindh provinces, requires all public and private organizations to adopt an internal code of conduct and to constitute a committee to adjudicate complaints against harassment. The Committee notes with interest the enactment of the Balochistan Protection Against Harassment of Women at Workplace Act (2016) which covers all forms of sexual harassment (quid pro quo and hostile work environment) committed not only by a person with authority but also by a colleague and a person or persons with whom women workers have contact through their work. The Committee also notes from the Government’s report that the Government indicated that the Federal Ombudsman Secretariat for Protection against Harassment of Women at Workplace received 441 complaints and the Punjab and Sindh provincial Ombudsmen for Protection against Harassment of Women at Workplace received 98 and 350 complaints, respectively. However, it notes that the time frame in which those complaints were submitted remains unclear. The Committee also welcomes the information provided by the Government regarding the activities organized by the Federal Ombudsman and the Provincial Ombudsmen (Punjab and Sindh) to prevent and address sexual harassment, such as the awareness-raising activities for employers, workers and civil society representatives. The Committee asks the Government to consider extending to men the Protection Against Harassment of Women at the Workplace Act (2010), the Punjab Protection Against Harassment of Women at the Workplace Act (2012), the Balochistan Protection Against Harassment of Women at Workplace Act (2016) and any other relevant legislation adopted by the other provinces so as to protect men against sexual harassment in employment and occupation on an equal footing with women. It further asks the Government to take steps to train labour inspectors and judges on the issue of sexual harassment in employment and occupation and raise awareness of the laws on sexual harassment among workers and employers and their respective organizations as well as the public. Lastly, the Committee asks the Government to continue to provide information on: (i) the implementation of these laws in practice, in particular on the adoption by public and private organizations of internal codes of conduct and the constitution of complaints committees to adjudicate complaints against harassment; and (ii) the number and results (sanctions imposed and remedies granted) of complaints lodged for sexual harassment.

Transgender and intersex persons.The Committee notes with interest the adoption of Act No. XIII of 2018, the Transgender Persons (Protection of Rights) Act, which recognizes the right of persons to choose their gender identity and prohibits, inter alia, discrimination against and harassment of transgender and intersex persons based on sex, gender identity and gender expression, in relation to education, employment, trade and occupation, including termination of employment or occupation. The Committee asks the Government to take steps to raise awareness of the Transgender Persons (Protection of Rights) Act (Act No. XIII of 2018) among workers, employers and their respective organizations as well as enforcement authorities, and provide information on its implementation in practice, including any cases of discrimination based on gender identity dealt with by the labour inspectors or the courts.

Discrimination based on social origin. The Committee recalls its observation expressing concern regarding the continuous de facto segregation and discrimination against Dalits. The Committee notes the Government’s indication that it does not recognize any discrimination among individuals on the basis of their belonging to a specific caste. The Government further indicates that newly adopted provincial laws, such as the Sindh Payment of Wages Act (2015), the Punjab Minimum Wages Act (2019) and the Balochistan Payment of Wages Act (2021), prohibit discrimination based on caste. The Committee reminds the Government that proactive measures are also required to analyse and address the situation of the different groups in the labour market, in cooperation with workers’ and employers’ organizations, and to improve knowledge and awareness among ethnic and national minorities about anti-discrimination and equality legislation, enforcement mechanisms and procedures (see 2012 General Survey on the fundamental Conventions, paragraph 775). In this regard, the Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) recommended that measures necessary to end discrimination in employment against Dalits be taken (CERD/C/PAK/CO/21-23, 3 October 2016, paragraph 32). The Committee urges the Government to adopt the necessary measures at the federal and provincial levels to enforce the prohibition of and to eliminate discrimination based on caste with respect to Dalits and promote their inclusion in the labour market in a wider range of jobs. It also asks the Government to provide statistics disaggregated by sex on the employment of Dalits.

Discrimination based on religion. The Committee reiterates its previous observation expressing concern regarding equality of opportunity and treatment in employment and occupation for religious minorities, in particular the members of the Ahmadi minority. It recallsarticle 260(3)(b) of the Constitution that defines a “non-Muslim” as “a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or the Lahori Group who call themselves “Ahmadis” or by any other name or a Bahai, and a person belonging to any of the Scheduled Castes”. The Committee also recalls section 298C of the Penal Code (“blasphemy laws”) that singles out members of the Ahmadi minority, as well as the practice which has the effect of denying the Ahmadi minority from obtaining passports identifying them as Muslims. The Committee notes that such provisions have a bearing on the opportunities of religious minorities regarding employment and that they are contradictory to the labour laws that Pakistani provinces have adopted over the past decade, such as the Balochistan Payment of Wages Act (2021), the Khyber Pakhtunkhwa Payment of Wages Act (2013) and the Sindh Payment of Wages Act (2015), which include “religion” as a ground for non-discrimination. The Committee notes with regret that the Government’s report does not contain any information regarding any steps taken or envisaged to review the discriminatory legislative provisions and administrative measures. It notes that, in a joint statement, United Nations Human Rights Experts have expressed their deep concern over the lack of attention to the serious human rights violations perpetrated against the Ahmadiyya Muslim community around the world, including in Pakistan. They have urged all States inter alia to: (1) repeal all laws that discriminate against Ahmadi Muslims; (2) ensure the equal and effective participation of Ahmadis in public life and in decision-making processes that affect them, including by guaranteeing their access to employment; (3) address the multiple and intersecting forms of violence and discrimination suffered by Ahmadi women; and (4) eliminate discrimination against Ahmadi children and their exclusion from education and vocational training (see special procedures, press release of 13 July 2021). The Committee once again urges the Government to take immediate steps to amend its discriminatory legal provisions and administrative measures, and to actively promote respect and tolerance for religious minorities, including the Ahmadi, and to provide information on any progress made in this regard. The Committee once again asks the Government to provide information on the access to employment of religious minorities, including those defined in article 260(3)(b) of the Constitution. It further asks the Government to provide information on any other measures taken or envisaged to promote tolerance and equality of opportunity and treatment in employment and occupation for religious minorities.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes that according to the Key Findings of Labour Force Survey 2020–21, female participation in the Pakistani labour market remains low at 21.4 per cent of the total workforce, of which 28 per cent work in rural areas. The Committee welcomes the adoption of the Sindh Home-Based Workers Act (2018), the Khyber Pakhtunkhwa Home-Based Workers (Welfare and Protection) Act (2021) and the legislative progress of the Balochistan Home-Based Workers Bill (2021) and the Islamabad Capital Territory Domestic Workers Bill (2021), which provide domestic workers with access to labour rights. The Committee further notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern about: (1) “persistent discriminatory stereotypes regarding the roles and responsibilities of women and men in the family and in society, exacerbated by the religious divisions in the State party, which perpetuate women’s subordination to men”; and (2) “the persistence of discriminatory stereotypes faced by women and girls belonging to ethnic minority groups, in particular Ahmadi, Christian, Dalit, Hindu, Roma, scheduled caste, Sheedi and Sikh women and girls, who are sometimes the victims of abduction and forced conversion”. The CEDAW also expressed concerns regarding: (1) the very low labour force participation rate for women; (2) the high concentration of women in the informal economy, particularly in the agriculture sector, where they are not covered by labour law and social security programmes, including minimum wage protection, overtime compensation and maternity leave; (3) the lack of reliable data on the number of women who are employed, including home-based women workers, women domestic workers, unpaid women care workers, women with disabilities and refugee women; (4) the very low level of participation of women in senior and middle management positions in 2018 (4.2 per cent); and (5) the very low percentage of women entrepreneurs (an estimated 1 per cent of entrepreneurs) (CEDAW/C/PAK/CO/5, 10 March 2020, paragraphs 29, 41 and 47(a)). In light of the above, the Committee asks the Government to take proactive measures to: (i) promote women’s access to employment and a wide range of jobs, and to address their low participation in the labour market; and (ii) address discrimination against women, including those belonging to ethnic minority groups, and gender stereotypes regarding their role in employment and society.

It also asks the Government to provide information on: (i) any measures, including those by the inspection staff under the provincial Labour Departments, taken in this regard; (ii) the adoption of the Balochistan Home-Based Workers Bill (2021) and the Islamabad Capital Territory Domestic Workers Bill (2021) and the impact of the new laws relating to home-based workers and domestic workers on their employment situation, in particular their access to their labour rights; and (iii) the participation of men and women in the labour market and the informal economy, by sector and occupational category if possible.

The Committee is raising other points in a request addressed directly to the Government.