Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Burundi (Ratification: 1993)

The Committee notes the observations on the application of the Convention made by the Trade Union Confederation of Burundi (COSYBU), which were received on 26 November 2015.

Article 1(1)(a) of the Convention. Discrimination on the basis of sex or gender. Gender-based violence. The Committee notes with interest the adoption of Act No. 1/13 of 22 September 2016 concerning the prevention and suppression of gender-based violence and victim protection, which defines and punishes, inter alia, the concept of gender-based violence, including sexual violence, sexual harassment, gender-hostile traditional practices and economic violence, which is defined as denying a spouse access to family resources or forbidding a spouse to work. The Committee also notes that, under section 14, any employees who are victims of gender-based violence in or outside the workplace have the right, at their request and subject to a doctor’s approval, to a temporary reduction or reorganization of hours of work, to a geographical transfer, to assignment to another workplace, to the suspension of their employment contract (following which employees can resume their contracts) and to resignation without notice. In this respect, the Committee would like to draw the Government’s attention to the fact that resignation with or without notice must not be used in practice as the only means of ending the violence and obtaining compensation but rather should be a last resort since this would amount to punishing the victims through the loss of their jobs (double penalty). The Committee notes that Act No. 1/13 also provides that “any employer who violates the rights of a person on the basis of his/her sex which are set down in the Labour Code and its implementing regulations, shall be liable to a fine of 500,000 to 1 million Burundian francs”. The Committee asks the Government to provide information on the following points:

• (i) the implementation and application in practice of Act No. 1/13 of 22 September 2016 with regard to employment and occupation, indicating the number and type of cases of gender-based violence dealt with by the labour inspectorate and the courts and also the penalties imposed;
• (ii) the steps taken or contemplated to inform and raise the awareness of employers, workers and their respective organizations, labour inspectors, judges and also the general public as regards action against gender-based violence, including the steps taken to publicize the content of Act No. 1/13; and
• (iii) the activities of the Independent National Human Rights Commission (CNIDH) against gender-based violence in employment.

In addition, the Committee asks the Government to indicate whether it envisages carrying out an inventory of laws that are discriminatory towards women in order to bring them into line with the Constitution and ratified international instruments, as recommended by the CNIDH.

Sexual harassment. The Committee recalls that section 563 of the Penal Code, as amended in 2009, includes a provision defining sexual harassment as “the act of subjecting another person to orders, threats or physical or psychological coercion, or serious pressure, with a view to obtaining favours of a sexual nature by abusing the authority inherent in his or her functions”, but does not cover either hostile work environment sexual harassment or acts committed by a work colleague or a person connected to the job (such as a customer or supplier). The Committee notes that Act No. 1/13 of 2016 defines sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, whether between equals or in a hierarchical situation; the act of subjecting another person to orders, threats or physical or psychological coercion, or serious pressure, with a view to obtaining favours of a sexual nature by abusing the authority inherent in his or her functions”. The Committee observes that this definition covers more forms of sexual harassment, including sexual harassment by a person who has no hierarchical connection with the victim. However, it notes that this definition does not cover the concept of a hostile, offensive or humiliating work environment created by certain forms of conduct with sexual connotations. While noting in particular the progress achieved through the adoption of Act No. 1/13 of 2016, the Committee asks the Government to examine the possibility of expanding the definition of sexual harassment by adding the notion of a hostile, offensive or humiliating work environment, and asks it, in the absence of any specific provision towards this end in the Act of 2016, to specify the procedure to be followed and the penalties that apply in cases of sexual harassment. The Committee also asks the Government to provide information on the practical steps taken to prevent and eliminate sexual harassment in the public and private sectors, including measures designed to raise the awareness of employers, workers and their respective organizations with regard to the prevention and treatment of sexual harassment.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes that, according to the National Employment Policy Paper of 2014, some progress has been made on equality but profound inequalities persist in terms of access to initial employment and to managerial posts and as regards conditions of work. These inequalities are due to various forms of discrimination and the social distribution of labour and the exclusive role of women in the area of childcare and domestic tasks. In this regard, the Committee notes that the National Employment Policy states that it will be necessary to encourage enterprises to take steps to achieve a better balance between work and family life and to improve women’s access to productive resources. It also provides for the possibility of establishing a 30 per cent quota for women at all hierarchical levels in the public and semi-public administration on a trial basis, and also for the use of anonymous employment resumés and the promotion of vocational training.

The Committee further notes that Act No. 1/13 of 2016 provides that the Government must formulate and implement a gender policy, submit a report on its implementation to the National Assembly (sections 3 and 4) and adopt awareness-raising measures to “modify structures and models of sociocultural behaviour for men and women to eliminate customary or other practices based on the notion of the inferiority or superiority of either sex or stereotypical roles of men or women” (section 5). The Act establishes the obligation for parents or any other persons in charge of children to give equal treatment to boys and girls in all aspects of life and to protect them against any gender-based violence (section 8). Public authorities must take steps to give girls and boys equal access to education, and school directors must ensure that single mothers’ right to education is respected. In this regard, the Committee notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, welcomed the measures adopted by Burundi to increase the school enrolment and retention rates for girls, including the adoption of a policy on the reintegration of girls into school after pregnancy (CEDAW/C/BDI/CO/5-6, paragraph 34). While welcoming all of these provisions and measures, the Committee asks the Government to provide information on their implementation in practice and the results achieved, including with regard to increasing the rate of school enrolment and vocational training for girls and improving women’s access to productive resources and to employment including to managerial posts in the public and private sectors. The Committee also asks the Government to indicate whether a new national gender policy, replacing the one adopted in 2012, has been formulated and, if so, to provide details on those sections relating to gender equality in employment and occupation.

Indigenous peoples. The Committee recalls that it has been drawing the Government’s attention for a number of years to the stigmatization and discrimination faced by the Batwa people and notes that the Government’s report does not contain any information on this matter. The Committee notes that, in their respective concluding observations, CEDAW emphasizes that access to education for Batwa girls is very limited (CEDAW/C/BDI/CO/5-6, 25 November 2016, paragraph 34(b)) and the United Nations Committee on Economic, Social and Cultural Rights expresses concern at the lack of effective measures for combating the discrimination faced by the Batwa, particularly with regard to ensuring the effective exercise of their economic, social and cultural rights (E/C.12/BDI/CO/1, 16 October 2015, paragraph 15). The Committee urges the Government to take the necessary steps to ensure equal access for the Batwa people to education, vocational training and employment, including to enable them to exercise their traditional activities, and also steps to combat stereotypes and prejudice against this indigenous community and to promote tolerance among all sections of the population. The Committee also asks the Government to provide information on the impact of Act No. 1/07 of 15 July 2016 revising the Forestry Code, which provides that the rational and balanced management of forests is based, inter alia, on the principle of participation by the grassroots communities, and on the exercise of traditional activities by the Batwa on the land where they live.

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