Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Uruguay (Ratification: 1989)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT) of 30 August 2019, indicating that it recognizes the efforts that have been made against all forms of discrimination.

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Pregnancy testing. The Committee notes the Government’s indication in its report, in reply to its request for information, that complaints have not been received by the general labour inspectorate and that it has no knowledge of complaints made to the judicial authorities concerning violations of Act No. 1868 of 23 December 2011, which prohibits pregnancy testing as a requirement for recruitment, promotion or retention in any position or employment in the public or private sectors.

Sexual harassment. With reference to its request for information on the measures adopted to prevent and eradicate sexual harassment at work, the Committee takes due note of the Government’s indications that: (1) the National Institute for Women (Inmujeres) is continuing to provide advice to institutions which so request for the establishment of commissions and the formulation of their action protocols; (2) an agreement has been concluded with the National School of Public Administration for it to carry out awareness-raising and courses on gender, including sexual harassment among the subjects to be covered; (3) information pamphlets have been distributed throughout the country by State institutions and social organizations and, within the context of the UN Women programme “Win-Win: Gender equality means good business”, support has been received to produce a video publicity spot on sexual harassment, in accordance with the latest legislative provisions; and (4) in 2020, the general labour inspectorate published two pamphlets to be distributed by labour inspectors to employers during enterprise inspections (one of the pamphlets refers to the legislative provisions on sexual harassment and the other deals with the measures to be adopted by all employers when a worker in the enterprise is a victim of domestic violence).

The Committee also notes the Government’s indication that in 2019 a total of 56 complaints concerning sexual harassment were made to the general labour inspectorate of the Ministry of Labour and Social Security, for which 22 cases were investigated and have been set aside without penalty, while 34 are still under investigation. In 2020, a total of 40 complaints were made, of which six were set aside without penalty and 32 are still under investigation. The Committee expresses the firm hope that the investigations will be completed in the very near future and that they will clarify responsibilities, punish those who are guilty and that appropriate compensation measures will be adopted. The Committee requests the Government to provide information on this subject and a copy of the respective administrative decisions.

Article 2. National Equality Policy. The Committee notes the detailed information provided by the Government on the National Gender Equality Strategy 2030, as approved by Decree No. 137/018 of 7 May 2018. The Government has provided full documentation and reports on the key challenges for the period 2020-25, as well as the minutes of meetings of the National Gender Council on the action taken and planned under the Strategy (for further information, see https://www.gub.uy/ministerio-desarrollo-social/consejo-nacional-genero). The Committee also notes the various activities undertaken by the Ministry of Labour and Social Security on gender-sensitive internal management (capacity-building and training measures, the creation of spaces for dialogue, etc), as well as similar initiatives in various public bodies. The Committee takes due note of this information and requests the Government to continue providing information on any follow-up measures relating to the National Gender Equality Strategy 2030, as well as other initiatives adopted and their impact.

With reference to its request for statistics disaggregated by sex, ethnic and racial extraction, age, disability and urban, suburban and rural areas of residence, which have been compiled within the context of the National Gender Equality Strategy 2030 in relation to the situation of men and women in employment and the various occupations, the Committee welcomes the comparative statistical data for 2017 and 2020 provided by the Government. The Committee notes that at the date on which the report was sent, 2020 data was not available on the distribution of the active population by African descent, age group and area of residence. The Committee requests the Government to provide updated statistics for the period covered by the next report and to indicate the manner in which the Strategy and the other measures referred to have contributed to the promotion of equality of opportunity and treatment in employment and occupation.

Access of women to employment. The Committee notes that, in reply to its request for information on the measures adopted to promote the access to employment of men and women on an equal footing and their impact on the participation of women in a broader range of jobs, including in non-traditional sectors, the Government provides 2019 statistics on employed persons by sex and branch of activity (indicating that 54.6 per cent of employed persons are men and 45.4 per cent women, and that the branches of activity with the highest percentages of women are teaching and health services, while those with the most men are agriculture, fishing, hunting and construction). Finally, the Committee takes due note of the information provided by the Government on the various initiatives relating to the labour market integration of women who are suffering or have suffered gender violence at work, as well as the initiatives of the National Employment and Vocational Training Institute (INFOP) of the Ministry of Labour and Social Security and Inmujeres in the Ministry of Social Development (MIDES). The Committee hopes that the Government will continue to take measures to reduce the disparity between men and women in employment.

Persons of African descent. The Committee notes that the Government: (1) provides information on the various Ministerial initiatives adopted for the promotion of policies for persons of African descent, and particularly Afro-Uruguayan women; (2) indicates that the impact of Act No. 19122, establishing the requirement to set aside 8 per cent of jobs in public bodies for persons of African descent has been uneven as, even though the goal has been easily met for educational grants, the percentage specified has not been attained for the jobs quota in the public sector; and (3) sends voluminous statistical data on the age and occupations of persons of African descent in the public sector and indicates that 50.79 per cent of men are engaged in general work and services, while 35.71 per cent of the women are engaged in administrative work and general services. The Committee takes due note of the educational measures adopted and requests the Government to provide information on any developments in the promotion of policies relating to the employment of persons of African descent.

Persons with disabilities. With reference to its request for information on the measures adopted to promote access to and retention in employment of persons with disabilities, the Government indicates that the report of the National Civil Service Office, which refers to the recruitment of persons with disabilities in the State sector, in accordance with the rules reserving a minimum of 4 per cent of the vacancies that become available each year, shows that 87 persons were recruited in 2019, representing 1.3 per cent of the vacancies for all the bodies covered by the requirement, 19 of which were in compliance with the minimum quota of 4 per cent of vacancies to be taken by persons with disabilities. The Committee notes the Government’s indications concerning the institutions which have recruited persons with disabilities, the work that they perform and the percentage of men and women. The Government indicates that new strategic measures are being developed to achieve gender equality and provides information on the existence of a register for enterprises interested in the labour market integration of persons with disabilities. Finally, the Committee notes the creation of the National Honorary Commission on Disability (CNHD), composed of representatives of public bodies, academics and civil society organizations, with responsibility for the formulation, examination, evaluation and implementation of national policy plans for the promotion, development, medical, psychological and social rehabilitation, and social integration of persons with disabilities. While taking due note of all the information provided, the Committee requests the Government to provide information on any developments in relation to the measures adopted to continue promoting access to employment for persons with disabilities.

Enforcement. Shift of the burden of proof. With reference to its request for information on whether legal procedures in cases of discrimination envisage the reversal of the burden of proof, the Government indicates that there is no rule in the national legislation that sets it out explicitly. In relation to sexual harassment, although no legislative provision covers the distribution of the burden of proof, regulatory Decree No. 256/017 calls for evidence-based proof. The Committee notes this information in response to its previous request.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 1 of the Convention. Discrimination on the basis of sex. Pregnancy testing. In its previous comments, the Committee noted with satisfaction the adoption of Act No. 18868, of 23 December 2011, which prohibits the requirement of pregnancy tests as a condition for entry, promotion or retention in any post or employment in the public and private sectors, and it requested the Government to provide information on any complaints made to the administrative or judicial authorities under the Act and on the penalties imposed and the compensation granted. The Committee notes the Government’s indication that no complaints have yet been received under Act No. 18868. The Government adds that the labour inspection services conducted investigations into complaints of discrimination on grounds of sex in five cases in 2014 and the same number of cases in 2015. The Committee requests the Government to continue providing information on the application in practice of Act No. 18868, including information on any complaints made to the administrative or judicial authorities under the Act, the penalties imposed and compensation granted, and on any violations detected by the labour inspection services in relation to pregnancy testing, and their outcome.

Sexual harassment. The Committee notes the information provided by the Government on the application of Act No. 18561 on sexual harassment, and particularly the various awareness-raising and training activities undertaken with a view to preventing and eradicating sexual harassment in the working environment, such as support to institutions for the establishment of a board to receive complaints of sexual harassment and the formulation by the National Employment and Vocational Training Institute (INEFOP) of a training programme for private sector enterprises on the prevention of work-related sexual harassment and the establishment of an institutional policy of no tolerance. The Government adds that a course on sexual harassment was undertaken for training institutions for the inclusion of the subject in employment-related training. The Committee also notes that, according to the statistical tables provided by the Government, in 2015 and 2016 there were 56 and 58 complaints of sexual harassment made to the labour inspection services, respectively. The Committee further notes the adoption of Act No. 19580 on gender-based violence against women, of 22 December 2017, which has the objective of guaranteeing the effective right of women to a life free from violence. The Committee notes that section 4 of the Act defines gender-based violence as any form of discrimination which affects women and includes “any conduct, act or emission, in public or private, arising out of an unequal relationship of authority based on gender, which has the objective or result of prejudicing or undermining the recognition, enjoyment or exercise of the human rights or fundamental freedoms of women”. The Committee notes with interest that the Act explicitly recognizes “labour-related violence”, including sexual harassment, among the manifestations of gender-based violence (section 6) and envisages a series of measures to ensure the retention and integration in employment of women victims of violence (sections 40 and 41). The Committee requests the Government to continue providing information on the measures adopted to prevent and eradicate sexual harassment at work, particularly the measures adopted within the context of Act No. 18561 on sexual harassment and Act No. 19580 on gender based violence against women, and the results achieved. The Government is also asked to continue providing information on the number of complaints of sexual harassment made to the administrative or judicial authorities and their outcomes including any penalties imposed or compensation granted.

Article 2. National equality policy. The Committee recalls that in its previous comments it noted with interest that the National Gender Board had carried out an evaluation of the application of the first Plan for Equality of Opportunities and Rights (PIODNA 2007–11) and it requested the Government to provide information on the measures adopted to give effect to the recommendations made within the framework of the evaluation, and the results achieved. The Committee notes that the Government has not provided information on this subject. The Committee also notes and welcomes the National Gender Equality Strategy 2030, which includes among the various types of action envisaged by 2030: (i) promoting a cultural transformation towards gender equality and the deconstruction of gender stereotypes; (ii) promoting the access of women in a situation of socio-economic vulnerability to employment and education, with emphasis on persons of African descent; (iii) ensuring that women agricultural producers have access to co-title to their lands and family productive units; (iv) adopting the necessary measures to combat any form of gender discrimination; (v) compiling statistical information on the socio-economic situation of the population disaggregated by sex, ethno-racial extraction, age, disability and urban, suburban and rural areas of residence; (vi) eliminating educational segregation and promoting the access of women to areas related to sciences; (vii) promoting and reinforcing vocational and/or productive training and initiatives for women; (viii) reducing horizontal and vertical occupational segregation in the public and private sectors; and (ix) promoting the integration of women in the formal economy. The Committee requests the Government to provide information on the measures adopted in the framework of the National Gender Equality Strategy 2030 to promote equality of opportunity and treatment for men and women in employment and occupation, and the progress achieved. Please also provide statistical information disaggregated by sex, ethno-racial extraction, age, disability and urban, suburban and rural areas of residence, which has been compiled within the context of the Strategy in relation to the situation of men and women in employment and the various occupations.

Access of women to employment. The Committee notes the Government’s reference to the study “Persistent inequalities: Labour market, skills and gender” undertaken in 2014 by the United Nations Development Programme (UNDP), according to which, despite the increased participation of women in the labour market, they continue to be engaged in traditionally female jobs, such as office workers, services and the retail trade. The Committee notes that the Continuous Household Survey (ECH) also indicates that in 2016 the various branches of activity did not show major changes with regard to their gender composition. Women continue to be concentrated in services and as saleswomen, followed by unskilled work, while men are more prevalent as officials, mechanical operators and allied work, and unskilled workers. The UNDP study also shows that women continue to work fewer hours a week than men at all levels of education. The Committee further notes the Government’s indication that the INEFOP, at the request of the Tripartite Commission for Equality of Opportunities and Treatment in Employment (CTIOTE), conducted a course on gender and non-discrimination for an enterprise in the construction sector with a view to the reinstatement of two women who had not been included in the workforce due to discrimination based on sex. The Committee requests the Government to continue providing information on the measures adopted to promote the access to employment of men and women on an equal footing and their impact on the participation of women in a broader range of jobs, including non-traditional sectors. It also refers to its comments on the application of the Equal Remuneration Convention, 1951 (No. 100), and the Workers with Family Responsibilities Convention, 1981 (No. 156).

Persons of African descent. The Committee recalls that in its previous comments it noted, among other measures, Act No. 19122 of 2013 respecting provisions to promote the participation of persons of African descent in education and employment and it requested the Government to provide information on the impact of the affirmative action measures adopted within the framework of the Act on the participation of men and women of African descent in the labour market, and on the application in practice of the 8 per cent quota for jobs in the public sector and training activities set out in the Act. The Committee notes the Government’s indication that 6.9 per cent of those registered and participating in INEFOP training courses in 2015 self-identified as being of African descent. With regard to the quota for jobs in the public sector, the Government indicates that, according to the information received from 120 of the 122 units which were required to provide data, in 2016 a total of 275 persons of African descent were recruited by 19 public institutions, representing 1.78 per cent of the jobs filled in the institutions subject to this requirement, 32 per cent of whom were women and 68 per cent men. The Committee also notes the establishment in 2016 of the Education and African Descent Commission in the National Education Department (DNE) of the Ministry of Education and Culture, which established a series of priority actions including: (i) dissemination and awareness raising on the quota for students of African descent; and (ii) training for teachers on education and African descent. The Government also reports that 17.5 per cent of all support grants for middle school were provided to students of African descent in 2015. The figures were 19.01 per cent in 2016 and 19.69 per cent in 2017. With regard to the postgraduate “Carlos Quijano” grants, 11.11 per cent of all grants were awarded to students of African descent in 2015, with the figures rising to 33.33 per cent in 2016 and 27.27 per cent in 2017. With regard to the impact of the affirmative action measures envisaged by Act No. 19122 on the participation of persons of African descent in the labour market, the Committee notes the Government’s indication that there was an increase in 2016 of the entry of persons of African descent into technical and professional positions in relation to previous years (2 per cent in 2014, 5 per cent in 2015 and 12 per cent in 2016). The Committee further notes that, in its concluding observations, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) expressed concern at the limited impact that affirmative action measures have had in opening up access to employment for persons of African descent (E/C.12/URY/CO/5, of 20 July 2017, paragraph 17). The Committee also notes that, in its concluding observations, the United Nations Committee for the Elimination of Racial Discrimination (CERD) expressed concern at the multiple types of discrimination facing women of African descent in education and the labour market (CERD/C/URY/CO/21-23, 12 January 2017, paragraph 20). Similarly, the United Nations Committee for the Elimination of Discrimination against Women (CEDAW) referred in its concluding observations to the disproportionate level of educational exclusion, lower salaries and more disadvantageous incorporation into the workforce of women of African descent (CEDAW/C/URY/CO/8-9, 25 July 2016, paragraph 9). The Committee further notes that, according to the annual report of the Honorary Committee against Racism, Xenophobia and other forms of Discrimination (CHRXD) of Uruguay of March 2017, 21 complaints concerning racial discrimination were received in 2016 and 2017, of which 88 per cent concerned persons of African descent, and 48.21 per cent related to discrimination in the working environment. The Committee encourages the Government to continue making all the necessary efforts to promote and guarantee equality of opportunity and treatment in employment and occupation for women and men of African descent and to provide information on this subject. The Government is also asked to continue to provide information on the effect given in practice to Act No. 19122 and its impact on the participation of persons of African descent in employment and vocational training.

Workers with disabilities. The Committee notes the information provided by the Government concerning the application of Act No. 18651, of 19 February 2010, on the comprehensive protection of persons with disabilities. In particular, it notes the training undertaken by the INEFOP during the period 2015–16 for 657 persons with disabilities with a view to promoting their employment or educational reintegration. The Committee further notes the various awareness-raising and training activities undertaken in relation to disability in the labour market for employers, workers, unions and organizations of persons with disabilities. The Government adds that measures have been taken for the progressive improvement of accessibility to premises and means of communication which depend directly on the INEFOP. With regard to the National Civil Service Office (ONSC), which administers the recruitment and human resources selection system, the Committee notes that in 2016 and 2017 two calls were issued to persons with disabilities and that 39 and 17 applicants with disabilities, respectively, were successful in the skills and background stages. The Government also indicates that 22 persons with disabilities were recruited by public institutions (with permanent contracts) in 2015, representing 0.33 per cent of vacancies (14 men and eight women). In this regard, the Committee notes that the United Nations Committee on the Rights of Persons with Disabilities, in its concluding observations, expressed concern at the high levels of unemployment among persons with disabilities and the fact that the civil service employment quota for persons with disabilities was not met (CRPD/C/URY/CO/1, 30 September 2016, paragraph 57). The Committee requests the Government to continue providing information on the measures adopted to promote the access and retention in employment of persons with disabilities, including information on the adaptations made to enable persons with disabilities to perform their work adequately in accordance with section 51(h) of Act No. 18651 and on any other measure intended to promote compliance with the public sector employment quota, including vocational training and education measures.

Complaint procedures. The Committee notes the information provided by the Government concerning the activities undertaken by the CHRXD, which is responsible for receiving complaints from persons or groups of persons who consider that they have been victims of situations of discrimination. In particular, the Committee notes that in 2015 the CHRXD received 29 complaints, of which ten related to situations of discrimination in the working environment. In relation to these cases, the CHRXD submitted reports to the judicial authorities on five occasions, and in the other cases promoted the corresponding administrative investigation or referred the situation to the labour inspection services. The Committee also notes that, according to the 2017 report of the CHRXD, of the 21 complaints received that year, 25 per cent concerned discrimination based on sexual orientation, 8.9 per cent discrimination on the basis of disability, 3.5 per cent gender-based discrimination and 44.6 per cent racial discrimination. Of all these complaints, around ten were related to the working environment. The Committee further notes the information provided by the Government on the cases of discrimination detected by the labour inspection services. The Committee requests the Government to continue providing information on any cases of discrimination in employment dealt with by the labour inspection services, the judicial authorities or other competent authorities, and their outcomes. The Committee also once again requests the Government to indicate whether legal procedures in cases of discrimination provide for the reversal of the burden of proof.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Sexual harassment. With regard to the application of Act No. 18561 on sexual harassment and its impact in practice, the Committee notes the full information provided by the Government on the training and awareness-raising measures undertaken in the public administration, the dissemination and advisory activities carried out by the National Women’s Institute (INMUJERES) and the implementation by the National Employment and Vocational Training Institute (INEFOP) of a pilot project for the training of human resources personnel, managers, supervisors and trade union representatives on sexual harassment with the objective of developing a course intended for private enterprises. The Government indicates that the issue of sexual harassment is also included in internal work rules, the agenda of bipartite safety and health commissions and trade union activities. Furthermore, ministries, State enterprises and public bodies have formulated protocols for the treatment of complaints of sexual harassment. The Government also provides information on the complaints lodged with the labour inspectorate between 2010 and 2013, including in the rural and domestic sectors. It reports that their number has progressively increased as a result of the improved access of workers to information and advisory services. The Committee requests the Government to continue providing information on the awareness-raising and training activities on sexual harassment carried out in the public and private sectors. The Committee also requests the Government to provide information on the number of complaints lodged with the administrative and judicial authorities concerning sexual harassment, the penalties imposed and the compensation granted.

Article 2. Access of women to employment. The Committee notes that, according to the evaluation report of the first Plan on Equality of Opportunities and Rights (PIODNA 2007–11), the participation rate of women in employment increased from 41.4 per cent in 1986 to 53.7 per cent in 2010. Nevertheless, the gap between the participation rates of men and women continues to be around 20 per cent. The Committee notes that, according to the above report, activities have been carried out to promote the recruitment of women by enterprises, including in non-traditional sectors, production projects have been facilitated and greater visibility has been given to the contribution of women to the national economy. Nevertheless, the Committee observes that the report does not contain statistical data. However, according to the gender statistics compiled by INMUJERES, horizontal and vertical segregation is prevalent (50.6 per cent of all women work in social services, 10.4 per cent in education and 16 per cent in domestic work (between 15 and 25 per cent, depending on the department)), despite the fact that 62 per cent of women have university qualifications. The Committee requests the Government to continue taking measures to address occupational segregation between men and women and to increase the participation of women in a broad range of jobs, including in non-traditional sectors. The Committee requests the Government to evaluate the effectiveness of such measures and to provide information, including statistics on this subject.

Domestic work. The Committee notes the conclusion in April 2013 of a new collective agreement for the domestic work sector covering the period 2013–15. The Committee also notes that in 2012 the participation rate of domestic workers in the social security system was 43.5 per cent. Moreover, the Committee notes the inspections carried out by the labour inspection services and their activities to disseminate information on rights and duties relating to domestic work, and the coordination between the inspection services and other State bodies dealing with migrant workers. The Committee notes the ratification on 14 June 2012 of the Domestic Workers Convention, 2011 (No. 189), and refers to its comments in relation to the application of that Convention.

Persons of African descent. The Committee notes the study “Inequalities of the population of African descent from the gender perspective” prepared, among others, by the Ministry of Social Development and INMUJERES, which found that 8.1 per cent of the population identified itself as being of African descent. According to the study, although the participation rate of women of African descent is greater than that of women who are not of African descent (57 per cent and 53 per cent, respectively), unemployment is also greater in that category of the population (12 per cent, compared with 8 per cent). The Committee also notes Act No. 19122 respecting provisions to promote the participation of persons of African descent in education and employment, of August 2013, which promotes the implementation of affirmative action measures in the public and private sectors and provides that 8 per cent of jobs in State authorities and Government departments, and in the skills and training programmes implemented by the INEFOP, shall be taken by persons of African descent. The Committee requests the Government to provide information on the impact of the affirmative action measures adopted in the public and private sectors within the framework of Act No. 19122 on the labour market participation of men and women of African descent, and on the application in practice of the 8 per cent quota for jobs in the public sector and training activities.

Persons with disabilities. The Committee notes the information provided by the Government concerning the training activities conducted by INEFOP and the measures of the National Disability Programme (PRONADIS) to improve the physical accessibility and information provided to persons with disabilities. The Committee requests the Government to provide information on the application of Act No. 18651 in practice, particularly with regard to the access of persons with disabilities to employment, job retention and the obstacles encountered, particularly under section 51(h) respecting the necessary adaptations for the appropriate performance of work by persons with disabilities.

Part III of the report form. Complaint procedures. The Committee referred in previous comments to the need for greater information on existing machinery to deal with complaints concerning discrimination at work, and particularly on protection against reprisals and the reversal of the burden of proof. The Committee notes the statistical information provided by the Government concerning complaints of discrimination on various grounds examined by the labour inspection services. The Government adds that inspections are carried out without divulging the identity of the authors of complaints and of witnesses, and that in the event of reprisals the provisions contained in Act No. 18561 on sexual harassment are applied by analogy. The Committee requests the Government to continue providing information on the complaints lodged with the labour inspection services and the judicial authorities concerning discrimination, the action taken, and the penalties imposed and the compensation granted. The Committee also requests the Government to indicate whether legal procedures in cases of discrimination provide for the reversal of the burden of proof.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Discrimination of the basis of sex. Pregnancy testing. In its previous comments, the Committee requested the Government to take measures to prohibit, prevent and penalize the requirement of a pregnancy test to gain access or remain in employment. In this regard, the Committee notes with satisfaction the adoption of Act No. 18868, of 23 December 2011, which prohibits the requirement of pregnancy tests as a requirement for entry, promotion or to remain in any post or employment in the public and private sectors, and provides for the most serious penalties in the event of violations. The Committee requests the Government to provide information on any complaints lodged with the administrative or judicial authorities under the above Act and on the penalties imposed and the compensation granted.

Article 2. National equality policy. The Committee notes with interest that, in accordance with Act No. 18104, the National Gender Council carried out an evaluation of the application of the first Plan for Equality of Opportunities and Rights (PIODNA 2007–11) by the various institutions in the public administration. The evaluation found an increase in the participation of women in the Chamber of Representatives (from 11.1 per cent in 2005 to 15.1 per cent in 2010), a slight increase in their participation in departmental boards (by 0.8 per cent), and the establishment of gender committees in the various state institutions. The Committee notes that, as a result of the evaluation, recommendations were made relating to human rights, the political participation of women, education, health and labour policies and measures to combat gender violence. These measures include guaranteeing decent work, the inclusion of gender equality clauses in collective agreements, the prevention and punishment of sexual harassment, the adoption of facilities for workers with family responsibilities and the increased integration of women, including Afro-descendent and migrant women, in the labour market. Recalling the importance of monitoring the implementation of plans and policies in terms of their results and effectiveness, the Committee encourages the Government to continue the systematic evaluation of the equality plans and programmes adopted and to provide information on this subject. The Committee also requests the Government to provide information on the measures adopted further to the recommendations made within the framework of the evaluation that has been conducted and the results achieved.

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

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

Women’s access to employment. In its previous comments the Committee asked the Government to supply information on Bill No. 648/2005, which prohibits discrimination with respect to job vacancies. The Committee notes that the Bill is before Parliament. The Committee requests the Government to continue to provide information on any developments in this respect and on the practical impact of Act No. 16045, which prohibits any discrimination that violates the principle of equal treatment and opportunity for both sexes.

Pregnancy testing. The Committee notes the Government’s indication that although no legislation has been adopted on this subject, the public enterprises which have adopted the pilot plan of the “Quality management with equity” programme of the National Institute for Women (INMUJERES) have each undertaken to appoint a committee to deal with complaints concerning gender inequality in employment and also to adopt procedures, due to be operational in 2011, to follow up and resolve such complaints. The Committee recalls that pregnancy testing as a requirement for obtaining or retaining a job constitutes a form of discrimination on the ground of sex under the Convention. The Committee therefore urges the Government to adopt specific measures to prohibit, prevent and penalize such testing in cooperation with the social partners and to send information on this subject, including the position of the Tripartite Commission on Equality of Opportunity and Treatment in Employment (CTIOTE) regarding this matter.

Domestic workers. In its previous comments the Committee referred to the adoption of Act No. 18065 of 27 November 2006 concerning domestic work implemented by Decree No. 224/2007, to its impact in practice, and to the lack of collective bargaining in this area within the wage councils. The Committee notes the Government’s indication that the registration of workers in domestic service increased by 33 per cent between 2004 and 2008, even though 57 per cent of domestic workers are still unregistered. The Committee further notes that “Wage council group 21 (domestic service)” was set up and a collective agreement was signed in November 2008 containing a clause reaffirming respect for the principle of equal opportunities and treatment in employment, in accordance with the Convention. The Government indicates that an international seminar on domestic service was also organized by the Ministry of Labour and Social Security and the CTIOTE, at which an information campaign relating to the regulatory framework in force in the sector was launched. The Committee requests the Government to continue to supply information on the steps taken to raise awareness of the legislation on domestic work and on the increase in the rate of registration of workers in the sector.

Persons with disabilities. The Committee notes that section 11 of new Act No. 18651 establishing a comprehensive protection system for persons with disabilities states that steps will be taken to promote the progressive establishment of equality in remuneration for persons with disabilities in relation to the area of employment of their parents, tutors or other legal representatives. The Committee requests the Government to provide information on the scope of this provision and on its application in practice.

Persons of African descent. In previous comments, the Committee noted the steps taken by the Government with a view to eliminating discrimination towards persons of African descent. The Committee notes the Government’s reference in its latest report to a set of measures adopted in the context of a programme to strengthen institutional mechanisms in favour of women of African descent, including the establishment of “ethnic and racial indicators with gender mainstreaming”, the incorporation of the ethnic and racial perspective in all departments, plans and programmes of the Ministry of State, the production of training materials, the launch of a public awareness-raising campaign on the subject and the drawing up of a plan of training to promote and formalize productive and cultural ventures set up by women of African descent in six departments of the country. Noting that, according to INMUJERES, the employment rates for women and men of African descent are 58.2 per cent and 79 per cent, respectively, the Committee requests the Government to send information on the impact of the measures taken to eliminate any form of discrimination against men and women of African descent.

National policy on gender equality. The Committee notes that, in the context of the National Equality Plan (Act No. 18104), the CTIOTE set up labour subcommittees, the work of which has resulted in recently adopted draft legislation on domestic work and sexual harassment. Focal points have been appointed in various ministries and public bodies for gender issues, and these coordinate and link policies, programmes and action. In addition, a “crosscutting gender methodology” has been established enabling the adoption of various training and planning actions in the ministries. Public officials on the negotiating boards of the wage councils have been trained in equality issues and the agenda of the next round of the wage councils is expected to include negotiations concerning the promotion of criteria for avoiding discrimination based on sexual, religious or political preferences. Furthermore, five public enterprises which participate in the “Equal management programme” have adopted inclusive criteria for selection and recruitment procedures. The Committee requests the Government to continue to supply information on the implementation and impact of the national policy on equality in employment and occupation.

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

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Sexual harassment. The Committee notes with satisfaction the adoption of Act No. 18561 of 18 August 2009 concerning sexual harassment at work and in teaching relationships. In keeping with the 2002 general observation, the Act contains standards relating to the prevention of and penalties for such acts and covers both quid pro quo and hostile work environment sexual harassment (section 2). The Act also imposes the obligation on the State to formulate and implement awareness-raising, education and supervision policies for the prevention of sexual harassment, establishes obligations for the employer in the event of a complaint, provides for measures to protect victims and witnesses against reprisals in the wake of the complaint (section 12) and lays down penalties. The Labour and Social Security Inspectorate-General (IGTSS) is the competent body in the public and private spheres for monitoring compliance with the Law. The Government adds that various activities, including for ministry officials, public enterprises and departmental supervisory bodies, have been undertaken by the Tripartite Commission on Equality of Opportunity and Treatment in Employment (CTIOTE) and by the National Institute for Women, to raise awareness and disseminate the Law and materials for dissemination have been produced. The Committee requests the Government to provide information on the practical application and impact of Act No. 18561 concerning sexual harassment, the number of complaints filed on the basis of the Act and the outcomes thereof.

Article 1(1)(b). Other legislative measures. Persons with disabilities. The Committee notes with interest the adoption of Act No. 18651 of 19 February 2010, which establishes a comprehensive protection system for persons with disabilities aimed, inter alia, at ensuring their occupational reintegration and at avoiding exploitation and discriminatory, abusive or degrading treatment. The Act also provides that the State will provide assistance in vocational training to persons with disabilities and will provide incentives for bodies that employ them. In addition, the State, government departments, autonomous entities, decentralized services and non-State associations are obliged to fill at least 4 per cent of vacancies with persons with disabilities who meet aptitude criteria for the posts concerned. The Committee requests the Government to send information, including statistics, on the impact of Act No. 18651 in practice.

Part III of the report form. Complaint procedures. In its previous observations, the Committee referred to the observations of the Inter-Union Assembly of Workers – Workers’ National Convention (PIT–CNT) concerning the need to establish flexible complaint mechanisms to resolve disputes involving discrimination at work. The Committee asked the Government to provide an assessment of the operation of existing complaint procedures within the IGTSS, indicating whether these procedures provide for the reversal of the burden of proof and protection against reprisals. The Committee observes that the Government’s report does not contain any information in this respect. The Committee therefore again requests the Government to undertake an assessment of the operation of existing complaint procedures within the IGTSS, indicating whether these procedures provide for a reversal of the burden of proof and protection against reprisals, and to continue to provide information on the complaints of discrimination lodged and the outcome thereof.

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

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Women’s access to employment. In its previous comments, the Committee referred to section 3(1) of Act No. 16045 prohibiting any discrimination in breach of the principle of equality of treatment and opportunity between men and women, with the exception of those cases where sex is an essential requirement to perform the activities associated with a certain post. The Committee notes from the Government’s report that draft Act No. 648/2005, which prohibits discrimination on job announcements, is under the consideration of Parliament. The Committee also notes the General Labour and Social Security Inspection (IGTSS) has no information on any cases in which the sex of the worker has been considered an essential requirement for a given post. The Committee asks the Government to provide information on the abovementioned draft Act and on the practical application of section 3 of Act No. 16045.

Pregnancy testing. The Committee notes that to date no legislation has been adopted regarding pregnancy tests and that the phase of hiring falls outside the mandate of the General Labour Inspection. Recalling that pregnancy tests as a requirement for recruitment to a job or for maintaining a job constitute a form of discrimination based on sex under the Convention, the Committee urges the Government to adopt the necessary measures to prohibit, prevent and punish such tests. The Committee hopes that this issue will be addressed under the draft Act on access to employment. It invites the Government to take the necessary measures in cooperation with the social partners, and asks the Government to provide information in this regard, including regarding the position of the Tripartite Commission for Equality of Opportunity and Treatment in Employment (CTIOTE) on this issue.

Domestic work. The Committee notes that Act No. 18065 on domestic work was adopted on 27 November 2006 and that Decree No. 224/2007 was adopted on 25 June 2007. However, the Committee also notes that, although the Government has convened the Wages Councils to recognize this sector of activity, collective bargaining in respect of domestic work does not yet take place due to the lack of representation of employers. The Committee asks the Government to provide information on any measures taken to encourage collective bargaining regarding domestic workers and to provide information on progress made in this regard. The Committee also invites the Government to provide information on the practical application of Act No. 18065 and Decree No. 224/2007.

Afro-descendants. The Committee notes the information provided by the Government regarding the Commission to Promote Ethnic-Racial Equity in Employment and the functions the Commission will have once the decree establishing it is adopted. The Committee notes that the Commission will be coordinated by the IGTSS and it welcomes that the Commission will be comprised of representatives from other government institutions, representatives of afro-descendants, of employers and of the PIT–CNT. The Committee considers that this composition will allow the Commission to have an impact on the non-discrimination of afro descendants in employment and occupation. The Committee also notes that activities undertaken and planned in the context of the Programme to strengthen the institutional role of women of African decent. The Government also provides information, among others, on activities to build capacity on equality issues, the audiovisual material entitled “Exerting rights, promoting identities” and other materials, such as a document entitled “Information on ethnic-racial focus. Conceptual elements”. The Committee also notes that quotas were established in capacity-building courses in favour of Afro-descendants women and the initiative to create the National Network of Afro-Descendant Women. The Committee asks the Government to continue to provide information on this matter.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

National gender policy. The Committee notes with interest that Act No. 18104 of March 2007 on equality of rights and opportunity between men and women in the Republic provides that the activities directed at equality of rights and opportunity between men and women are of public interest and that the State shall adopt all necessary measures to implement public policies that incorporate a gender perspective. The National Institute of Women is charged with designing the National Plan of Equality of Opportunity and Rights, with wide participation of women’s organizations, and in 2007 the first National Plan on the subject was adopted. The Committee also notes that the Tripartite Commission for Equality of Treatment and Opportunity in Employment (CTIOTE) elaborated a Plan of Action 2008. The Committee notes that within the CTIOTE a consensus was reached about promoting the implementation of the Equal Remuneration Convention, 1951 (No. 100), the Maternity Protection Convention (Revised), 1952 (No. 103), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Workers with Family Responsibilities Convention, 1981 (No. 156), as well as the Labour Declaration of MERCOSUR in the framework of collective bargaining. The Government also indicates that, within the Ministry of Social Development, the National Institute of Women is putting in place a gender information system the purpose of which is to highlight the forms of inequality between men and women existing in society. The Committee asks the Government to continue to provide information on the implementation and impact of the national policy of equality in employment and occupation.

Complaints procedures. In its previous comments, the Committee referred to a communication from the Inter-Union Assembly of Workers – National Convention of Workers (PIT–CNT) in which the PIT–CNT stressed the need to implement a flexible complaints mechanism to resolve labour discrimination disputes and that, in this respect, the burden of proof should be reversed, placing the onus on employers, and protection against reprisals should be afforded to workers who lodge complaints or testify. The Government informs that a unit competent to receive complaints and to provide advice to workers has been established within the General Labour and Social Security Inspection (IGTSS). It also indicates that in 2006 and 2007 all technical staff of the IGTSS was trained on sexual harassment and fundamental rights. The Government also indicates that the IGTSS has a Protocol on proceedings regarding complaints for discrimination. Such complaints are considered as urgent and priority is given to their examination. The Committee also notes the labour inspection’s procedures for dealing with complaints regarding sexual harassment. The Committee further notes that the IGTSS has kept a registry of complaints regarding moral and sexual harassment since 2004. The Committee notes that 17 sexual harassment complaints were examined in 2006 and 24 in 2007. The Committee asks the Government to provide an assessment on the operation of the existing complaints procedures to resolve discrimination cases, indicating whether these procedures meet the concerns of PIT–CNT concerning the burden of proof and protection against reprisals. The Committee also asks the Government to continue to provide information on the complaints lodged for discrimination and their outcomes.

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

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Access to employment. With regard to section 3, paragraph 1, of Act No. 16045, which prohibits all forms of discrimination that violate the principle of equality of treatment and opportunity for both sexes, with the exception of cases in which being of a particular sex is an inherent requirement for carrying out the activities involved in a certain job, the Committee notes that the Government has once again reiterated as follows: that no regulations or lists of jobs or occupations to which this exception might apply have been established; that there has been no dialogue with social partners to determine the criteria on the basis of which the fact of being of one particular sex is an inherent requirement for performing a certain activity since the general principle prevails in all cases; that the Labour Directorate has not received any complaints based on this exception; and that no appeals have been lodged with the courts based on this exception. The Committee therefore requests the Government to consider the possibility of repealing the abovementioned exception, so as to ensure that its application does not unjustifiably exclude individuals from the protection afforded by the Convention on the basis of sex.

2. African descendants. With regard to the information requested on the community of African descendants, the Committee notes the Government’s indication that it has not carried out any studies on the impact of Act No. 17677, which punishes incitement to hatred, contempt or violence against one or more persons on grounds of colour, race, national or ethnic origin, or sexual orientation or identity. It also notes, however, that the Secretariat of Human Rights, the Secretariat of Female African Descendants of the National Institute for Women, and the Ministry of Labour and Social Security are currently working on, or planning to begin work on, the promotion of equality in employment and occupation of the community of African descendants. The Committee asks the Government to provide detailed information on the functioning of, and the activities undertaken by, the bodies committed to the elimination of discrimination against African descendants and trusts that the Government’s next report will contain statistical information on the labour situation of the community of African descendants.

3. Pregnancy tests and proof of not being pregnant. The Committee notes the Inter-Union Assembly of Workers – National Convention of Workers’ (PIT-CNT) indication that there is no legislation expressly prohibiting and sanctioning requests for pregnancy tests or proof of not being pregnant as a requirement for access to employment. Moreover, the Committee notes the Administrative Resolution of 26 May 2006 which imposed a fine upon a specific company for violating a number of laws, including Act No. 16045 and the Convention, the reason being that the employment contract indicated that the female worker had declared herself not to be pregnant. The Committee requests the Government to provide information on the measures adopted or envisaged to eliminate this restriction in particular.

4. Code of financial penalties. With reference to the application and impact of the code of financial penalties approved by Decree No. 186/04 which classifies as very serious the actions or omissions implying discrimination in conditions of work and which envisages penalties in the event of such offences, the Committee notes the Government’s indication that this Decree was contested by the employers and that an application for the resolution of the issues had been lodged before the Administrative Disputes Tribunal. The Committee notes, however, that the labour inspectorate continues to apply the provisions in question. The Committee requests the Government to keep it informed of any developments and any solutions found in relation to the application referred to above and to provide information on the cases in which the labour inspectorate has identified offences under the code of financial penalties and the measures taken as a result.

5. Labour inspection. The Committee notes that within the General Labour Inspectorate there is a section which provides advisory services and receives complaints concerning violations of labour standards, including those relating to discrimination, and that these are dealt with by the Legal Inspection Division. The Committee notes that the Legal Inspection Division collaborates in these procedures whenever it is necessary to carry out inspection visits and that an inspection protocol was drawn up this year for cases of complaints of this nature. The Committee requests the Government to provide information on the requests for advice received by the labour inspectorate, the cases dealt with by the Legal Inspection Division and the measures taken as a result relating to the application of the Convention, and also requests it to communicate a copy of the abovementioned inspection protocol.

6. Domestic labour. The Committee notes the draft law on domestic labour which is currently before Parliament and which, according to the PIT-CNT, significantly amends the previous regulation which it considered discriminatory. It also notes the PIT-CNT’s indication that domestic labour is not covered by the Wage Council. The Committee trusts that the Government will take the necessary steps to ensure that this law is adopted by Parliament and that domestic labour is covered by the Wage Council.

7. Sexual harassment. Taking into consideration the PIT-CNT’s observation on the inadequacy of existing legislation to prevent and penalize sexual harassment, the Committee notes with interest the Government’s indication that a draft law has been prepared on the prevention and punishment of sexual harassment, with the assistance of an expert in this field from the ILO, and that it is currently being examined by the Tripartite Commission on Equality of Opportunity and Treatment in Employment. The Committee notes the Government’s indication that various awareness-raising activities have been undertaken in respect of discrimination in the form of sexual harassment and that the General Labour Inspectorate has implemented a summary procedure for complaints relating to sexual harassment. The Committee would be grateful if the Government would keep it informed of the development of the abovementioned draft law and attach a copy of it to its next report. It asks the Government to provide detailed information on the complaints procedure referred to and to continue to provide information on complaints received by the General Labour Inspectorate and on the manner in which they are dealt with.

8. Sex discrimination. The Committee notes the PIT-CNT’s indication that the Decree of 8 May 1950 on work in bakeries prevents women from working overtime and that there are no specific rules on paternity leave in the private sector. The Committee asks the Government to provide information on these issues, and on any measures taken or envisaged to address them.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the Inter-Union Assembly of Workers – National Convention of Workers (PIT-CNT), sent with the Government’s report and received on 23 October 2006.

1. National policy on equality between men and women. The Committee notes that the PIT‑CNT reiterates the issues it raised in its 2002 communication, namely, the lack of necessary infrastructure within the Tripartite Commission on Equality of Opportunity and Treatment in Employment, the non-application in practice of Act No. 16045 prohibiting all forms of discrimination that violate the principle of equal treatment and opportunity for both sexes, and the consequent persistence of discriminatory situations, due, in particular, to the poor dissemination and awareness of this legislation. The Committee notes that the Government, in its comments on the PIT-CNT’s observations, indicates that it is providing the Tripartite Commission with logistical support through the Human Rights Advisory Service and that the Commission’s infrastructure has been strengthened with the aid of the Ministry of Labour and Social Security. The Committee notes the activities undertaken by the National Employment Directorate and the Tripartite Commission in respect of training, guidance, dissemination, awareness raising and the compiling of statistical data. The Committee requests the Government to keep it informed of the measures adopted or envisaged to give effect to the Convention and reminds the Government to provide information on the impact of such measures in practice, including, if possible, statistical data.

2. Appeal procedures. With regard to the special, expedited procedure provided for in Act No. 16045, applicable to reports of discrimination violating the principle of equality of treatment and opportunity for both sexes, and the ruling of the law courts establishing that this procedure had been abolished by the General Code of Legal Proceedings, the Committee notes the Government’s indication that the Ministry of Labour and Social Security is studying the possibility of preparing an official initiative to establish a dispute settlement instrument that will respond effectively to the key principles of labour-related issues. The Committee notes that the PIT-CNT stresses the need to implement a flexible complaints mechanism to resolve labour discrimination disputes and that, in this respect, the burden of proof should be reversed, placing the onus on employers, and protection should be afforded to workers against reprisals for complaints lodged or statements made. The Committee notes that the Government’s report refers indirectly to the difficulties that workers have in providing evidence and to the lack of protection given to complainants, by indicating that the Ministry of Labour and Social Security, through the General Labour Inspectorate, implemented a summary procedure for complaints relating to sexual harassment, but that the complaints lodged within this framework were rejected for lack of evidence or due to their withdrawal by the complainant. The Committee hopes that the Government’s legislative proposal will include a flexible complaints mechanism that takes into account the difficulties that the worker has in producing evidence of discrimination and the need to protect complainants, so as to guarantee the effectiveness of the procedure.

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

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Access to employment. In earlier comments, the Committee has referred extensively to section 3(1) of Act No. 16045 which prohibits all discrimination that is contrary to equality of treatment and opportunity for both sexes and which states that "The hiring of a specific sex for an activity for which the sex in question is an inherent requirement, shall not constitute discrimination". The Committee notes from the Government’s report that no regulations or lists have been established and that the authority responsible for determining exceptions and jobs the performance of which depends on the hiring of a specific sex, is the Ministry of Labour and Social Security. Furthermore, the Ministry of Labour and the General Labour Inspectorate may rule that to advertise for or apply certain criteria based on sex as a requirement for entry into the labour market is discriminatory where they are not essential for performance of the job. So that it may satisfy itself that the application of this provision is restrictive and does not give rise to undue exclusion from the protection the Convention affords in access to employment and occupation, the Committee requests detailed information on: (a) the criteria used by the Ministry of Labour and the General Labour Inspectorate in determining the jobs for which sex is an inherent requirement; (b) any cases of job offers referred to the Ministry of Labour that include sex as an essential element, and cases reported by the Labour Inspectorate; (c) complaints filed to the courts on the basis of section 3 of Act No. 16045 and the courts’ decisions; and (d) efforts undertaken with the social partners to set clear criteria for determining when sex is an essential element for performing a specific activity.

2. National policy on equality. The Committee notes with interest the Plan for Equality of Treatment and Opportunity in Employment, announced in 2004 by the Tripartite Committee on Equality of Opportunity and Treatment in Employment. According to the Government, although the plan is not final and has not yet been approved for implementation, it is a fundamental tool for discussion and adoption by the Government. The Committee would be grateful if the Government would keep it informed about the adoption of the plan, measures for its implementation and its impact in practice.

3. Sexual harassment. The Committee notes with interest that the Fines Code, approved by Executive Decree No. 186/04 of 8 June 2004, which regulates offences to be dealt with by the Labour Inspectorate, provides in section 6(h) that sexual harassment in labour relations shall be treated as a very serious offence. It also notes that the municipality of Montevideo has issued resolution No. 4147/03 of 7 October 2003, has set up a working group on sexual harassment and has established a special summary procedure for dealing with sexual harassment complaints. The Committee would be grateful if the Government would continue to provide information on measures adopted in this regard and on the cases dealt with by the Labour Inspectorate.

4. African descendants. With regard to the information requested on the community of African descendants, the Committee notes that the Government has no up to date information on the participation of such persons in the labour market. The Committee notes the enactment, on 29 July 2003, of Act No. 17677, which punishes incitement to hatred, contempt or violence against one or more persons on grounds of colour, race, national or ethnic origin, or sexual orientation or identity. It also notes that there are organizations of African descendants that participate actively in a number of governmental committees. The Committee requests the Government to provide information on the impact of Act No. 17677 and to continue to provide information on any measures to promote equality in employment and occupation for members of the abovementioned community.

5. Labour inspection. The Committee notes that training courses for labour inspectors are held every year, which often include training in the area of equality. The Government refers to the recent adoption of the Fines Code, which treats as a serious offence "any actions or omissions that involve discrimination in working conditions on grounds of sex, nationality, marital status, race, social condition, political and religious ideas and membership or non-membership of trade unions". The Committee requests the Government to provide information on the application and impact of the abovementioned Code.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Remedial procedures. With regard to the comments by the Inter-Union Assembly of Workers - National Convention of Workers (PIT-CNT) concerning instances of discrimination based on sex in the National Administration of Electricity Plants and Distribution (UTE), in particular with respect to social security, which the Committee discussed in its previous comments, the Committee notes that in 2001 and 2002, there were no retirement incentive plans in the UTE and that there have been no initiatives of a nature similar to the case examined by the Committee. The Committee recalls that the trade union in question availed itself of the special, summary procedure provided for in Act No. 16045, which prohibits all discrimination that offends against the principle of equal treatment and opportunity for both sexes. The courts (of first and second instance) held that the abovementioned procedure has been repealed by the general rules under the General Code of Procedure. The Committee recalls that the availability of expedited procedures, which are inexpensive and easily accessible, is an important element in the application of the policy to promote equality of opportunity and treatment in employment and occupation (General Survey on equality in employment and occupation, 1988, paragraphs 216-230). It hopes that the Government will provide information on the claims that are pending, particularly those applying to Act No. 16045, and on the eventual adoption of any expedited procedures in this area.

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

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information sent by the Government in its report.

1. The Committee notes the Government’s statement to the effect that Bill No. 538 of 9 July 1996 on equal opportunity and treatment in the selection of staff, which expressly prohibited any form of discrimination intended to nullify or impair equal opportunity and treatment in employment or occupation on the basis, inter alia, of race, age, sex, political or trade union affiliation, religion, the fact of having dependent children, matrimonial status or physical disability, has been rejected by Parliament, which ended its term in 1999. The Government indicates that it is not known whether the matter will be raised again during the Government’s present term. The Committee points out that, while appropriate domestic legislation consistent with the Convention is a necessary condition for the effective application of the Convention, it is not enough; special legislation should be adopted which specifically guarantees equal opportunity and treatment in employment and occupation and prohibits discrimination on any of the grounds set forth in the Convention. The Committee asks the Government to provide information on the measures it intends to take with a view to the enactment of such legislation.

2. With regard to the comments by the Inter-Trade Union-National Workers’ Convention Assembly (PIT-CNT) alleging that section 3(1) of Act No. 16045 of 2 June 1989 prohibiting all discrimination that breaches the principle of equality of opportunity between men and women in any sector is not regulated by Decree No. 37/1997, the Committee notes the Government’s reply to the effect that the Act does not require the administration to specify the activities for which gender is an essential condition, but merely confirms that certain preferences may be maintained where this is essential for the activity to be carried out. Although paragraph 2 of Article 1 of the Convention establishes that any distinction, exclusion or preference based on the inherent requirements of a particular job are not to be regarded as discrimination, the Committee would remind the Government that this exception must be interpreted strictly so as not to result in undue limitation of the protection which the Convention is intended to provide. Qualification requirements that involve one or more of the grounds of discrimination envisaged by the Convention cannot be applied in a discriminatory manner and distinctions based on sex must be determined objectively and in accordance with individual characteristics. Nor can the exception be applied to all the jobs in a given occupation or sector of activity. An effective way of preventing such exceptions from resulting in discrimination in employment and occupation is to list the jobs or types of job of which criteria such as sex may be regarded as an inherent requirement (General Survey on equality in employment and occupation, 1988, paragraphs 124-132). The Committee, therefore, again asks the Government to provide information on how section 3 of Act 16045 is regulated, how activities reserved for a given sex are determined, which authority is responsible for determining such exceptions, and for which jobs sex is currently regarded as an inherent requirement.

3. The Committee notes the statistics contained in the study "Segregación laboral en el mercado de trabajo en Uruguay 1986-1989", published by the Instituto de Economía, showing that the women’s activity rate did not increase significantly in the period studied. It further notes that there is still occupational segregation, and that there is a concentration of women workers in personal services, such activities corresponding to the stereotypes which employers tend to identify with what are known as women’s aptitudes. The Committee also notes the information provided by the Government on the activities being carried out in the National Institute for Women and the Family, and the employment and vocational training policies being set up within the DINAE JUNAE system, specifically the Programme for the Promotion of Equal Opportunities for Women in Employment and Vocational Training. The Committee requests the Government to report on progress made in the preparation of the National Plan for Equality in Employment and to continue to provide information on measures to encourage equality in employment and occupation and to advance the status of women in the labour market.

4. The Committee notes the promulgation of Decree No. 28942 on sexual harassment issued by the Municipality of Montevideo, but observes that the draft bill on sexual harassment submitted to Congress has been shelved. The Committee requests the Government to continue to provide information on any other bills submitted to Parliament and to provide copies of them once they have been adopted. It further notes the extracts of court decisions on sexual harassment sent to the Office. The Government is asked to state whether any information and education campaigns on this subject have been conducted. The Committee refers the Government to the general observation on sexual harassment.

5. The Committee notes the Government’s statement that black people engage essentially in manual work either as employees or on a self-employed basis with no investment in infrastructure and particularly in the services and industrial sectors. The Government gives its assurance that black people are included among the beneficiaries of employment promotion programmes, which target in particular the sectors identified by the study of the National Statistics Institute as having the highest unemployment rate. The Committee requests the Government to continue to provide information on the measures implemented: (i) to promote equality in occupation and employment for black people, and particularly the men and women belonging to the Afro-Uruguayan community; and (ii) to prevent the occupational segregation of this group of the population.

6. The Committee notes that there are no statistical data on the activities of the General Labour and Social Security Inspectorate and that the Tripartite Committee on Equality of Opportunity and Treatment in Employment has no register of complaints concerning discrimination in employment and occupation. The Committee asks the Government to provide information on the possibility of giving inspectors training that enables them to act as advisers on matters of equality.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information sent in the Government’s report in reply to comments made by the Inter-Trade Union Assembly-National Workers’ Convention (PIT-CNT) concerning instances of discrimination based on sex in the National Administration of Electricity Plants and Distribution (UTE). The Committee notes the Government’s statement that the women workers who filed a complaint for discrimination with the General Labour Inspectorate, thus exhausting the administrative procedures, appealed to the Labour Court, which ruled against them, dismissing their claim on formal grounds. The Committee recalls that the PIT-CNT has alleged that, because special security standards were applied to women, women workers received smaller amounts than men when they collected voluntary redundancy benefits. The Committee requests the Government to provide information on the criteria applied to determine the amounts awarded to workers under the UTE’s retirement incentive plan for 2001 and 2002.

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

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  Discrimination on the basis of sex. The Committee notes that the union PIT-CNT indicates that section 3(1) of Act No. 16045 is not regulated by Decree No. 37/1997 (determining activities in which gender is an essential condition) and no indication is given regarding competence for determining these activities, the participation of occupational organizations in such determination and its periodic revision, etc. The Committee recalls the importance of the collaboration provided for under the Convention and necessary for its application. In some cases it is the Government, after consultating with the various organizations representing employers and workers, which prepares the list of jobs in which some criteria included in the Convention may be taken into account without being deemed discriminatory, in view of the nature of, and conditions under which, the job is performed. In others, given the general character of the provisions, including the provision cited, information regarding its practical application is above all derived from such interpretations as may be made by judges, to ascertain which cases fall within the exceptions allowed under Article 2(1) of the Convention. The Committee therefore requests information on the practical application of section 3 of Act No. 16045. In this respect, it notes that paragraphs 124 and 133 of the General Survey could provide guidance in this respect.

2.  The Committee notes from the Government’s report that the reformulation of the National Plan of Action for Women and the Family was not approved. It also notes that the Government’s report indicates concrete action in respect of the principle, such as the Committee on proposals and follow-up to the Beijing Conference on Women, the Honorary Committee on Rural Women and the Tripartite Committee on Equality of Opportunity and Treatment established on 7 March 1997, in replacement of the inter-institutional committee provided for under Decree No. 37/97, which was never convened. It observes with interest that according to the communication from PIT-CNT, the Tripartite Committee meets fortnightly, and has organized a course for labour inspectors in 1997, and a course on discrimination aimed at the public services in 1999. The Committee hopes to be kept informed on the functioning of, and on action taken by, these committees. It also requests to be kept informed on the plans and activities developed by the Tripartite Committee on Equality of Opportunity and Treatment in general, as regards categories other than sex covered by the Convention. The Committee also reiterates its request for information on cases in which Decree No. 37/97 may have been applied.

3.  Discrimination on the basis of race.  It also takes note of the statement by PIT-CNT that the organization regrouping black persons has intimated the existence of employment discrimination, adding that numerous activities are not carried out by such persons which, according to PIT-CNT, is a de facto indication of the impossibility of their obtaining these jobs. Noting that it has not received concrete elements in this connection, the Committee requests detailed information on the alleged practices, for their full examination.

4.  National policy to promote equality of opportunity and treatment.  The Committee would like to examine the national policy to promote equality of opportunity and treatment in respect of employment and occupation. Recalling in respect of such policy paragraphs 158 to 169 (formulation and content of a national policy designed to promote equality of opportunity and treatment) and 185 to 192 (cooperation of employers’ and workers’ organizations and other appropriate bodies in promoting the acceptance and observance of the national policy) in its General Survey on equality in employment and occupation, 1988,the Committee asks that detailed information should be supplied on such policy in the next report.

5.  The Committee again requests the Government to inform it whether Bill No. 538 of 9 July 1996, which contains sections on non-discrimination in regard to political, religious, trade union and other opinions, has been adopted.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the lengthy comments submitted by the Inter-Trade Union Assembly-Workers’ National Convention (PIT-CNT).

1.  Discrimination on the basis of sex.  In its earlier observations the Committee noted the observations presented by the Association of Employees of the National Board of Electrical Power Stations and Distribution (AUTE) - Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) concerning discrimination on the basis of sex which took place in the National Board of Electrical Power Stations and Distribution (AUTE). It was alleged that, because special social security standards were applied to women, women workers received smaller amounts than men when they collected voluntary redundancy benefits. The Committee recalled the wide scope of Article 1(a) of the Convention andof Paragraph 2(b)(iv) of Recommendation No. 111 and requested the Government to inform it of the final results of the proceedings initiated by the labour inspectorate in this case. In this connection, the Committee takes note of the decision of the labour inspectorate of 15 August 1997, attached to the Government’s report.

2.  This decision contains an analysis of the allegations by the parties and the opinions of other bodies consulted. The Retirement Incentive Plan (hereinunder referred to as "the Plan") impugned by the representatives of the women workers, approved by Directorate decision of 10 September 1996, distinguishes between two categories of employees covered by the normal retirement system: (a) employees between 55 and 59 years of age, who would receive an incentive equivalent to 12 wages; and (b) employees who would receive, on reaching 60 years of age, an incentive equivalent to 18 wages. Although the Plan makes no reference to gender, the age band of 55 to 59, which receives an incentive of six months less, refers to women, since at the time that the situation arose only men could retire at 60 years of age under the ordinary scheme. The Committee notes that the decision of the labour inspectorate reveals that no one could have been unaware that, under the retirement scheme in force at the time of the Plan, a women of 55 years of age was in an identical situation legally, for the purposes of the Plan, as a man of 60 years of age, and that therefore their retirement incentives must be equal.

3.  The Committee notes with interest that in the above decision, the Labour Inspectorate urges the UTE Directorate "within the limits possible to it" to allow 18 months’ wages incentives to women public servants disadvantaged by the Plan in question. However, it notes that the phrase "within the limits possible to it" leaves doubts as to the obligatory nature of the order and as to the degree to which it may have been respected. The Committee recalls that where identical conditions, treatment or criteria apply to all, but their consequences seriously disfavour certain workers because of their race, colour, sex or religion, and such conditions have no direct connection with the requirements of the employment, it amounts to indirect discrimination. Please indicate whether all the women disfavoured by the indirect discrimination arising from the Plan have received the corresponding 18 months’ wage incentives, and if measures have been adopted to ensure the conferring of such benefits does not disproportionately disadvantage women as compared to men.

4.  Remedial procedures.  In its comments on the Government’s report, PIT-CNT indicates that, in addition to the demands referred to above, the union had filed a legal request based on Act No. 16045, which prohibits any discrimination in breach of the principle of equality of treatment and opportunity for both sexes. To this end, the union had recourse to the special, shortened procedure provided for under the abovementioned law. The law courts (of the first and second instance) ruled that this procedure had been abolished by the general standards provided for under the General Code of Legal Proceedings. The union holds that, should this criterion become generalized action taken in respect of labour discrimination on the basis of Act No. 16045 would follow an ordinary procedure, the duration of which could last three years, and the rapidity provided for under the abovementioned Act would be completely lost. The union suggests that the procedure for habeas corpus be adopted. The Committee has been unable to examine the judgement, since although the Government indicates that it has included a copy of the judgement of the Labour Appeal Court (Judgement No. 375 of 11/12/97), it has not been received. It requests a copy of the judgement and, recalling that the institution of accelerated procedures, which are inexpensive and easily accessible, is an important element in the application of the policy to promote equality of opportunity and treatment in employment and occupation (paragraphs 216-230 of the General Survey on equality in employment and occupation, 1988), it hopes the Government will provide information on current legal remedies, and in particular on the procedure of application of Act No. 16045, as well as possible access to accelerated procedures in this field.

5.  The Committee notes that PIT-CNT, in its comments on the application of the Convention, stresses that the Government should supply information on the practical application of the Convention, given that women are discriminated against in respect of recruitment, promotion, remuneration and training due to labour market segregation. The workers’ organization also points to racial discrimination. The Committee requests the Government to supply more detailed information, including statistics, on the present situation and on the efforts made to tackle discrimination on the basis of sex and racial discrimination in training, employment and occupation. The Committee will examine the specific questions raised in this paragraph in a direct request.

6.  In addition, a request regarding other points is being addressed directly to the Government.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Promotion of equality in relation to sex. The Committee notes that Act No. 16.045 of June 1989 which prohibits any discrimination infringing the principle of equality of treatment and opportunity for both sexes in any sector or branch of employment has been regulated by Decree No. 37/97 of February 1997. It notes with interest that section 1 refers to activities which lay down direct or indirect requirements related to sex; section 3 refers specifically to training and occupational retraining; section 5 stipulates that sexual harassment in the workplace is a serious form of discrimination, which is a new aspect in regard to the Act under which the Decree is issued; and section 8 establishes the Inter-Institutional Commission with the aim of carrying out educational campaigns on the subject and proposing, coordinating and assessing programmes for the purpose of protecting the worker from discrimination. The Committee requests the Government to keep it informed in future reports of cases where this Decree is applied and, in particular, of any initiative or programme which stems from the Inter-Institutional Commission.

2. In its previous direct request, the Committee noted the plans to reformulate the National Plan of Action for Women and the Family (1992-97) and asked to be kept informed of the new developments in the Plan itself and its implementation, with emphasis on positive measures to increase women's access to vocational training and employment, and any programmes aimed at vulnerable categories of women workers, including rural women. The Committee notes that the Ministry of Labour and Social Security has carried out a number of activities on promotion of opportunities, in some cases with ILO support, such as the tripartite workshop (November 1996) entitled "Uruguay: National action for equality of opportunity in employment". One of its successes is the proposal to set up a tripartite body devoted to the study and recommendation of measures concerning equal opportunities, in particular as regards equality between men and women; this body commenced operations in March 1997. The Committee would like to receive specific information on whether this tripartite body has drawn up any programmes or recommendations relating to vulnerable categories of women workers, including rural women.

3. The Committee would be grateful if the Government would inform it whether Bill No. 538 of 9 July 1996 which contains sections on discrimination in regard to political, religious, trade union and other opinions, has been adopted.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation, which read as follows:

1. The Committee notes the observations presented by the Association of Employees of the National Board of Electrical Power Stations and Distribution (AUTE) - Inter-Union Assembly of Workers/National Convention of Workers (PIT/CNT) concerning discrimination on the basis of sex which took place in the National Board of Electrical Power Stations and Distribution (UTE). It is alleged that, because special social security standards are applied for women, women workers receive smaller amounts than men when they collect voluntary redundancy benefits. 2. The Committee notes that the Government has indicated that this situation has been denounced to the General Labour Inspectorate and is currently under examination. The Committee recalls the wide scope of Article 1, paragraph 1(a), of the Convention and paragraph 2(b)(iv) of Recommendation No. 111 and requests the Government to inform it of the final results of the proceedings brought by the labour inspectorate in this case.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. Promotion of equality in relation to sex. The Committee notes that Act No. 16.045 of June 1989 which prohibits any discrimination infringing the principle of equality of treatment and opportunity for both sexes in any sector or branch of employment has been regulated by Decree No. 37/97 of February 1997. It notes with interest that section 1 refers to activities which lay down direct or indirect requirements related to sex; section 3 refers specifically to training and occupational retraining; section 5 stipulates that sexual harassment in the workplace is a serious form of discrimination, which is a new aspect in regard to the Act under which the Decree is issued; and section 8 establishes the Inter-Institutional Commission with the aim of carrying out educational campaigns on the subject and proposing, coordinating and assessing programmes for the purpose of protecting the worker from discrimination. The Committee requests the Government to keep it informed in future reports of cases where this Decree is applied and, in particular, of any initiative or programme which stems from the Inter-Institutional Commission.

2. In its previous direct request, the Committee noted the plans to reformulate the National Plan of Action for Women and the Family (1992-97) and asked to be kept informed of the new developments in the Plan itself and its implementation, with emphasis on positive measures to increase women's access to vocational training and employment, and any programmes aimed at vulnerable categories of women workers, including rural women. The Committee notes that the Ministry of Labour and Social Security has carried out a number of activities on promotion of opportunities, in some cases with ILO support, such as the tripartite workshop (November 1996) entitled "Uruguay: National action for equality of opportunity in employment". One of its successes is the proposal to set up a tripartite body devoted to the study and recommendation of measures concerning equal opportunities, in particular as regards equality between men and women; this body commenced operations in March 1997. The Committee would like to receive specific information on whether this tripartite body has drawn up any programmes or recommendations relating to vulnerable categories of women workers, including rural women.

3. The Committee would be grateful if the Government would inform it whether Bill No. 538 of 9 July 1996 which contains sections on discrimination in regard to political, religious, trade union and other opinions, has been adopted.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes the observations presented by the Association of Employees of the National Board of Electrical Power Stations and Distribution (AUTE) -- Inter-Union Assembly of Workers/National Convention of Workers (PIT/CNT) concerning discrimination on the basis of sex which took place in the National Board of Electrical Power Stations and Distribution (UTE). It is alleged that because special social security standards are applied for women, women workers receive smaller amounts than men when they collect voluntary redundancy benefits.

2. The Committee notes that the Government has indicated that this situation has been denounced to the General Labour Inspectorate and is currently under examination. The Committee recalls the wide scope of Article 1, paragraph 1(a), of the Convention and Paragraph 2(b)(iv) of Recommendation No. 111 and requests the Government to inform it of the final results of the proceedings brought by the labour inspectorate in this case.

3. The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. Promotion of equality on the bases of race, colour, national extraction or social origin. The Committee notes that, according to the Government, no labour-related cases have been instituted concerning discrimination in employment based on any of the above grounds, and that this has been corroborated on the basis of legal research, and interviews with officials of the National Institute for Women and the Family, and with members of the judiciary. Noting that Act No. 16.048 of 1989, incorporated into the Penal Code, provides penal sanctions in cases of, inter alia, racist behaviour in general, the Committee requests the Government, in future reports, to provide information on any cases which might be heard in the criminal courts concerning discrimination in employment based on the grounds referred to above.

2. Promotion of equality of women. (a) The Committee notes that the new Government, in place as of March 1995, plans to reformulate the National Plan of Action for Women and the Family (1992-97). The Committee asks the Government to keep it informed of these new developments in the Plan itself and its implementation, with emphasis on positive measures to increase women's access to vocational training and to employment, and any programmes (described as "horizontal programmes" in the National Plan) aimed at vulnerable categories of women workers, including rural women. For example, the Committee would like to receive more information regarding the vocational guidance workshops which commenced in December 1994 and the regional training project - mentioned in the report as having ILO support - to enhance Uruguayan women's skills in gaining access to the labour market (Capacitacíon para la Búsqueda de Empleo de Mujeres en América Latina).

(b) With regard to educational activities designed to promote understanding and observance of the policy of non-discrimination within the scope of the National Plan, the Committee notes the information in the report according to which the National Institute for Women and the Family, in its reformulation of the National Plan, has established contact with the new education authorities so as to work in a coordinated fashion. The Committee requests the Government to keep it informed of the promotional and educational programmes that might result from these contacts, in application of Article 3(b) of the Convention.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in reply to its previous request concerning the legislative provisions relating to Article 4 of the Convention.

1. Promotion of equality on the bases of race, colour, national extraction or social origin. The Committee notes the information provided in the report on freedom of religion and thought (the Constitution of 1967 and the Amnesty Act No. 15737 of 1985). It also notes the Government's explanations concerning the judicial and administrative procedures which exist to guarantee respect for the principle of equality in employment set out in general terms in the Constitution. It requests the Government to supply information in its future reports on cases of discrimination in employment based on the grounds referred to above so that it can evaluate the application of the principles set out in the Convention with regard to all the grounds to which it refers.

2. Promotion of equality of women. (a) The Committee notes with interest the activities to promote equality for women in employment, in particular the National Action Plan for Women and the Family (1992-97) which establishes programmes to review labour legislation in order to identify and eliminate provisions which are directly or indirectly discriminatory, as well as positive measures to increase training and employment opportunities for women. It requests the Government to continue to provide information on the implementation of this Plan and its "horizontal programmes" aimed at vulnerable categories of women workers, such as rural women.

(b) The Committee notes the many educational activities for equality contained in the National Plan and requests the Government to state whether these consist of the education campaigns to strengthen the acceptance and observance of the policy of non-discrimination on the basis of sex referred to in section 6 of the Act to guarantee equality of treatment and opportunity for both sexes.

(c) With regard to recourse procedures for cases of discrimination in employment on the basis of sex, the Committee notes with interest the publication supplied by the Government entitled "Discrimination at Work" prepared by the Labour Law Institute, and in particular the description of the various procedures available in cases of discrimination in employment (including, complaints to the Ministry of Labour and Social Security; and special complaints under the Act to guarantee equality of treatment and opportunity for both sexes, No. 16045, with a view to eliminating discriminatory practices at work). The Committee notes that, according to the Government, violations of this type have not been reported and there is no case-law involving the courts. It requests the Government to inform it in future reports of any ruling handed down in this respect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information contained in the Government's first and subsequent reports and the attached legislative texts.

1. Promotion of equality on the basis of race, colour, religion, political opinion, national extraction or social origin. The Committee notes that article 8 of the 1967 Constitution generally stipulates that "All persons are equal before the law, no other distinctions being recognized among them save those of talent and virtue" and that Act No. 16045 of 2 June 1989 prohibits any discrimination which violates the principle of equality of treatment and opportunity for both sexes in employment, but that otherwise there is no statutory provision prohibiting discrimination or guaranteeing equality in employment and occupation on the grounds of race, colour, religion, political opinion, national extraction and social origin. It requests the Government to provide information on legislative and other measures which have been taken or contemplated to prohibit discrimination and promote equality of opportunity and treatment in employment and occupation with respect to those grounds in accordance with the Convention.

2. Promotion of equality of women. (a) The Committee notes that sections 4 and 5 of Act No. 16045 and Act No. 15903 of 10 November 1987 provide an enforcement mechanism through complaint procedures for workers alleging discrimination based on sex. The Committee requests the Government to provide information on the practical application of these procedures.

(b) The Committee asks the Government to supply detailed information on the education campaigns which have been undertaken pursuant to section 6 of Act No. 16045 to further promote acceptance and observance of the anti-discrimination policy on the ground of sex.

(c) Noting that section 7 of Act No. 16045 repeals all provisions which are inconsistent with that Act, the Committee requests detailed information on whether studies have been carried out or are envisaged so as to identify any inconsistent provisions and whether there has been amendment of administrative practices or repeal of statutory provisions that have been found to be inconsistent with the policy of non-discrimination on the ground of sex.

(d) The Committee also requests the Government to provide information on the specific measures (including affirmative action) taken to promote equality of opportunity and treatment between men and women in the public service and to ensure the application of the policy of non-discrimination in the activities of vocational guidance, vocational training and placement services.

3. Article 4. The Committee requests the Government to supply information on any legislative or administrative provisions applicable to activities prejudicial to the security of the State and the right of appeal for the persons envisaged under Article 4.