Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Congo (Ratification: 1999)

Articles 1 and 2 of the Convention. Protection against discrimination. Legislation. In its previous comments, the Committee drew attention to a number of gaps in the Labour Code and the General Public Service Statute in the area of the protection of workers from discrimination. It furthermore noted that the Constitution establishes a general ban on all discrimination based on origin, social or material status, racial, ethnic or departmental extraction, sex, education, language, religion, philosophy or place of residence (article 8). Noting that the Government again refers to the Constitution, the Committee would like to point out that although it is important to lay down general provisions on discrimination in the Constitution, in most cases this by itself is not enough to combat discrimination in employment and occupation effectively. The Committee also observed previously that the Labour Code’s provisions on discrimination covered only certain grounds and applied only to wages (section 80) and dismissal (section 42). The Committee requests the Government to take the necessary steps to have the Labour Code amended so as to include provisions that apply to all workers and that define and prohibit expressly direct and indirect discrimination on at least all the grounds of discrimination set forth in Article 1(1)(a) of the Convention, namely, race, colour, sex, religion, political opinion, national extraction or social origin, at all stages of employment and occupation. The Government is also asked to take the necessary measures to introduce provisions in the General Public Service Statute that secure protection against discrimination for public employees as well, as required by the Convention.

Discrimination based on ethnic origin. Indigenous peoples. The Committee notes with interest the adoption of Act No. 5-2011 of 25 February 2011 to promote and protect the rights of indigenous peoples, which contains provisions on consultations, civil and political rights, cultural rights, the right to education, the right to work, the right to property and the right to the environment. The Committee notes in particular that any form of discrimination against indigenous peoples based on their social origin or their indigenous identity, is prohibited in access to employment, working conditions, vocational training, remuneration and social security (sections 2(2) and 27(1), read together). Penalties are laid down for discrimination (section 27(2)). The new Act further establishes that the indigenous children’s right of access to education at all levels, without discrimination and to all forms of learning under the national education system, is guaranteed by the State (section 17(1)). Furthermore, the Act provides for the implementation of special training programmes suited to the economic, social and cultural situation and the specific needs of indigenous peoples, particularly in the areas of education and health (section 28).

The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD) stated that it was “concerned by the marginalization and discrimination to which the Pygmies are subjected in terms of access to justice and the enjoyment of their economic, social and cultural rights, in particular, access to education, health and the labour market” (CERD/C/COG/CO/9, 23 March 2009, paragraph 15). In its concluding observations, CERD referred to a National Plan of Action to improve the quality of life of the indigenous peoples (2009–2013) (ibid.). The Committee notes that, according to the Government’s report, studies are being conducted with a view to the adoption of regulations to ensure equality of opportunity and treatment in education, employment and education for indigenous peoples. It also notes that statistics are being compiled.

Noting these provisions and this information, the Committee requests the Government to provide information on the following points:

• (i) the application in practice of Act No. 5-2011 of 25 February 2011, specifying the specific measures taken to promote training for persons belonging to indigenous peoples and indigenous children’s access to education and to combat the marginalization and discrimination to which the indigenous peoples are subjected, in particular in the context of the abovementioned plan;
• (ii) the establishment and the running of the Interministerial Committee to Monitor and Evaluate the Promotion and Protection of Indigenous Peoples, to be created pursuant to the Act;
• (iii) the studies conducted and the statistics compiled on the situation of indigenous peoples.

Discrimination based on sex. Sexual harassment. The Committee notes that according to the report submitted by the Government in 2010 under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), “Many girls and women suffer sexual harassment at work, at school ...” (CEDAW/C/COG/6, 20 July 2010, paragraph 94). The Committee also notes the information supplied by the Government in its report on the present Convention to the effect that implementing texts on sexual harassment in employment and occupation are being prepared. The Committee hopes that these texts will contain a definition of and an express prohibition of all forms of sexual harassment, particularly quid pro quo and hostile working environment harassment, as the Committee urged in its general observation of 2002. The Committee requests the Government to provide information on progress made in the adoption of legislative or regulatory provisions defining and prohibiting sexual harassment, and on any practical measures taken to prevent and eliminate sexual harassment at the workplace.

Discrimination based on national extraction. The Committee notes that according to the Government, the policy of “Congolizing” jobs poses no problems in terms of discrimination based on national extraction “insofar as foreigners have the same rights and freedoms as nationals” (article 42 of the Constitution). The Committee would like first to point out that the concept of discrimination based on national extraction covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin. The Committee accordingly draws the Government’s attention to the need to monitor the risk of discriminatory practices based on national extraction, and asks it to ensure that in practice the policy of “Congolization” of jobs does not lead to discrimination based on national extraction. The Government is again asked to provide the full text of the judgement of the Pointe-Noire Labour Tribunal ruling that the nationalization of jobs constitutes a legitimate ground for dismissal.

Articles 2 and 3. National policy to promote equality of opportunity and treatment. The Committee notes that the Government’s report contains no reply to its request for information on the measures taken to promote and ensure equality of opportunity and treatment in employment and occupation in relation to all the grounds covered by the Convention. The Committee again asks the Government to provide information on any policy that may have been adopted at national level for the promotion of equal opportunities and treatment, including in particular the application of legislative or administrative measures, the implementation of public policies or action programmes or the establishment of special bodies responsible for promoting equality and hearing complaints.

Equality of opportunity and treatment for men and women. The Committee notes that in its report the Government states that no discrimination against women in employment and occupation has been reported in the country. It notes, however, that according to the abovementioned CEDAW report, many stereotyped patterns exist in the world of work (ibid., paragraph 90) and that “Women’s lack of knowledge of labour law means that they frequently suffer abuses by employers” (ibid., paragraph 144). Women are concentrated in sectors such as teaching, health and agriculture, and there a few women in senior posts (ibid., paragraphs 90–91). The report also stresses the inadequate provision of childcare and women’s limited resources for access thereto restrict their ability to attend training courses and reconcile professional life and family responsibilities, (ibid., paragraph 146). Lastly, the Committee notes from Congo’s 2010 Millennium Development Goals (MDG) report that the proportion of women employed in the public service has fallen from 33.4 per cent in 1990 to 32.53 per cent. The Committee asks the Government to provide detailed information on the following matters:

• (i) the status of men and women in employment in the public and the private sectors;
• (ii) the draft texts referred to by the Government in its report and the measures taken to promote equality of opportunity and treatment between men and women, particularly women’s access to a broader range of jobs and occupations and to resources and means of production;
• (iii) the manner in which equal opportunities are ensured in the public sector in recruitment, promotion and employment conditions;
• (iv) any activities to raise awareness among employers, men and women workers and their organizations about the principle of equality and women’s rights in employment.

Article 4. Activities prejudicial to the security of the State. In the absence of a reply from the Government on this matter, the Committee is bound to repeat its previous request which read as follows:

The Committee notes the Government’s reference to article 45 of its Constitution which provides that treason, espionage for the benefit of a foreign power, crossing over to the enemy in times of war, as well as any other harm to the security of the State are punishable by law. The Committee requests the Government to provide information on any measures that may have been taken concerning persons suspected or engaged in activities prejudicial to the security of the State, which may restrict their access to employment and occupation. Please also indicate the procedures establishing the right of appeal available to persons covered under this Article.

Article 5. Special measures of protection or assistance. In its previous comments, the Committee noted that section 112 of the Labour Code allows the Government to prohibit, by decree, the access of women, including pregnant women, to certain jobs upon the advice of the National Consultative Employment Commission. The Committee requests the Government to indicate whether any decrees to apply section 112 establishing a list of jobs prohibited for women including pregnant women have been adopted and, if so, to provide copies of them.