Observación (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Bahrein (Ratificación : 2000)

The Committee notes the complaint concerning the non-observance by Bahrain of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made by delegates to the 100th Session (June 2011) of the International Labour Conference under article 26 of the ILO Constitution. The status of the complaint remains under review by the ILO Governing Body; therefore, the issues raised therein regarding specific allegations of discrimination based on political opinion and religion will not be examined by this Committee at this time. The Committee also notes the reports received from the Government of 12 September 2011 and 30 August 2012.

Legislative developments. The Committee notes the adoption of the Labour Law in the Private Sector, Law No. 36 of 2012 (“Labour Law”), which entered into force on 2 September 2012. The Committee notes the Government’s indication that the new law includes modern principles, which take into account international labour standards, thus addressing several gaps in the previous law. The Committee notes that pursuant to section 39, “Discrimination in wages based on sex, origin, language, religion or ideology shall be prohibited”. Section 104 provides that the termination of an employment contract is deemed to be arbitrary dismissal if the termination is due to “sex, colour, religion, ideology, marital status, family responsibilities, or the female worker’s pregnancy, delivery of a child or breastfeeding; ... complaint or formal notice or instigates an action against the employer, unless the complaint, formal notice or action are of a vexatious nature”, and that reinstatement is to be ordered by the Court where dismissal was due to one of the enumerated grounds. In addition, section 29 provides that women shall be subject to all the provisions governing the employment of men “without discrimination in similar situations”, and section 33 prohibits employers from dismissing women on the grounds of marriage or during maternity leave.

The Committee recalls its previous comments urging the Government to take steps to ensure that the new Labour Law included provisions explicitly defining and prohibiting direct and indirect discrimination, on all the grounds enumerated in Article 1(1)(a) of the Convention, with respect to all aspects of employment and occupation, and covering all workers, including domestic workers, casual workers and agricultural workers. The Committee notes, however, that the Labour Law does not define discrimination and does not appear to prohibit indirect discrimination. The Committee also notes that, while discrimination in wages and discriminatory dismissals is prohibited, not all the grounds set out in Article 1(1)(a) of the Convention have been included. In particular, section 39 does not prohibit discrimination based on race, colour, political opinion, national extraction or social origin; and race, political opinion, national extraction and social origin are absent from the list of prohibited grounds in section 104. The Committee notes that protection against discrimination in “access to vocational training, access to employment and to particular occupations, and terms and conditions of employment”, as set out in Article 1(3) of the Convention, is not covered by the Labour Law, with the exception of wages and dismissal. The Committee also notes that pursuant to section 2, the Labour Law does not apply to civil servants and public legal entities or “domestic servants and persons regarded as such, including agricultural workers, security house-guards, nannies, drivers and cooks” performing work for the employer or the employer’s family members, except for certain specified provisions, which do not include those relating to discrimination. The Committee recalls that legal provisions adopted to give effect to the Convention should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention, and should apply to all aspects of employment and occupation (General Survey on the fundamental Conventions, 2012, paragraphs 749 and 856). The Committee further recalls that the purpose of the Convention is to protect all persons against discrimination, and no provision in the Convention limits its scope with respect to individuals or branches of activity (see General Survey, 2012, paragraph 733). Noting the Government’s reference to the adoption of Legislative Decree No. 48 of 2010 regarding the civil service, the Committee asks the Government to provide a copy of the Decree and indicate the specific provisions of relevance to the implementation of the Convention. The Committee also asks the Government to provide detailed information on the steps taken to ensure that all workers, including those excluded from the scope of the non-discrimination provisions in the Labour Law, are protected against both direct and indirect discrimination, with respect to all aspects of employment and occupation, including access to employment, vocational training and terms and conditions of employment, based on all the grounds enumerated in the Convention. The Committee also asks the Government to consider further revising the Labour Law with a view to giving full legislative expression to the principle of the Convention, and to provide information on any steps taken in this regard.

Discrimination based on sex. The Committee had been raising concerns regarding the provisions of the previous Labour Code which foresaw an Order being made prescribing the occupations and jobs that could be offered to women as alternative employment in the event of marriage. The Committee urged the Government to ensure that such a provision was not included in the new legislation and expressed the hope that any restrictions on women’s employment would be strictly limited to maternity protection. The Committee notes, however, that while the new Labour Law does not replicate this provision, it provides for a potentially much broader prohibition on the employment of women, as section 31 provides that the Minister shall issue a decision determining the work in which the employment of women is prohibited. The Committee recalls that protective measures for women may be broadly categorized into those aimed at protecting maternity in the strict sense, which come within the scope of Article 5 of the Convention. Those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention and constitute obstacles to the recruitment and employment of women (see General Survey, 2012, paragraph 839). The Committee urges the Government to take steps to ensure that protective measures applicable to women are limited to maternity protection in the strict sense, and that any provisions otherwise constituting an obstacle to the recruitment and employment of women are repealed and any such measures withdrawn. Please provide information of the specific measures taken or envisaged in this regard.

Sexual harassment. The Committee notes that the opportunity was not taken in the course of the revision of the Labour Code to include a provision expressly defining and prohibiting sexual harassment in employment and occupation. The Committee notes that the Government again asserts that the provisions of the Penal Code are sufficient, and that in addition a complainant could submit a complaint of discrimination to the Ministry of Labour. The Committee recalls that the Penal Code addresses rape and other forms of sexual assault, but does not address the full range of behaviour that constitutes sexual harassment in employment and occupation. The Committee considers that addressing sexual harassment through criminal proceedings is not sufficient due to the sensitivity of the issue, the higher burden of proof, and the limited range of behaviour addressed. The Committee also considers that the non-discrimination provisions in the Labour Law are not sufficient, as they cover only wages and termination of employment and do not expressly define and prohibit all forms of sexual harassment. The Committee recalls that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, and requires effective measures to prevent and prohibit it, which should address both quid pro quo and hostile environment sexual harassment (General Survey, 2012, paragraph 789). The Committee once again urges the Government to take steps to define and prohibit expressly sexual harassment in employment and occupation, encompassing both quid pro quo and hostile environment harassment. The Committee also asks the Government to take practical measures to prevent and address sexual harassment, and to provide detailed information in this regard.

Migrant workers. The Committee notes, as indicated above, that the Labour Law excludes from coverage of the non-discrimination provisions groups that will be comprised largely of migrant workers, namely “domestic servants and persons regarded as such, including agricultural workers, security house-guards, nannies, drivers and cooks”. The Committee recalls that it has been raising concerns regarding the particular vulnerability of migrant workers to discrimination, in particular migrant domestic workers. The Committee also recalls the adoption of Order No. 79 of 16 April 2009, section 2 of which provides that “a foreign worker shall have the right to transfer to work with another employer without violating the rights of the employer by virtue of the provisions of the law or the text of the labour contract concluded between the parties”. The request to change employers must be approved by the Labour Market Regulatory Authority (section 5). The Government indicates that between 1 August 2009 and 31 March 2011, out of 18,340 foreign workers who changed employer, only 215 did so without the employer’s approval (1.17 per cent). The Government indicates that a tripartite committee has been discussing the impact of the Order on the labour market, and has decided that a company has the right to specify in the labour contract the prohibition of a worker’s transfer to a competitive company for a defined period. The Government also indicates that an employer generally has the right to include in the employment contract a requirement limiting the approval of a transfer to another employer for a specified period. If the worker does not adhere to the terms of the contract, the employer can claim compensation from the court. The Committee considers that permitting an employer to stipulate limitations on the transfer to another employer in the employment contract could undermine the objective of Order No. 79 because, due to unequal bargaining power, migrant workers may be pressured to agree to such provisions, once again placing them in a position of increased dependency, and seriously affecting their enjoyment of labour rights and exposing them to discriminatory practices. The Committee asks the Government:

• (i) to ensure effective protection of all migrant workers against discrimination on the grounds of race, sex, colour, religion, political opinion, national extraction and social origin, and to ensure that they have access to appropriate procedures and remedies, and to provide information on concrete steps taken in this regard;
• (ii) to ensure that any rules adopted to regulate the right of migrant workers to change employers do not impose conditions or limitations that could increase the dependency of migrant workers on their employers, and thus increase their vulnerability to abuse and discriminatory practices;
• (iii) to provide information on the number of migrant workers, disaggregated by sex, occupation and country of origin, that have changed employers pursuant to Order No. 79 (with employer’s approval, without employer’s approval, and after the end of the work permit);
• (iv) to provide information on the nature and number of requests received by the Labour Market Regulatory Authority for a transfer of employer without the employer’s approval, disaggregated by sex, occupation and country of origin, and how many were refused and on what basis; and
• (v) to continue to provide information on the results of the examination by the committee to determine the impact of applying the Order and any follow-up thereto.

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