Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Article 5. Special protection for women. Section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes from the Government’s report that the National Labour Council, in the context of its sessions in 2005 and 2008, has adopted a draft Order concerning the working conditions of women, which would replace Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the draft Order mentioned above as soon as published.