Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Arabia Saudita (Ratificación : 1978)

The Committee recalls its previous observation in which it noted the conclusions of the direct contacts mission (1–6 February 2014) concerning the progress made by the Government in declaring and pursuing a national policy designed to promote equality of opportunity and treatment in employment and occupation, for all workers, with a view to eliminating discrimination on all the grounds set out in the Convention. The Committee had requested the Government to give particular attention to the situation of migrant workers, men and women, including domestic workers, in order to determine the rights of such workers and the extent to which such rights are effectively protected (that is whether they have knowledge of their rights and are able to obtain appropriate redress). The Government was also requested to provide information on the impact of bilateral agreements with countries of origin and given some suggestions to make tangible progress in the application of the Convention.

Article 2 of the Convention. National equality policy. As regards the Committee’s request to the Government to take immediate steps to develop and implement a national equality policy and to request technical assistance from the ILO, the Government indicates in its report that a request was sent to the President of the Council of Ministers (King) on 7 July 2016 to authorize the establishment of a working group to formulate a national equality policy in conformity with Article 2 of the Convention. On 29 July 2016, the issue was officially referred to the Council of Ministers by a Royal Guidance. Meanwhile, the Committee has been informed that the Government has recently requested the technical assistance of the ILO for developing the abovementioned policy in follow–up to the direct contacts mission and that the Government wishes to discuss the technical arrangements for such support. The Committee recalls that it had requested that, as part of the future national equality policy, concrete measures be adopted in the legislation to define and prohibit direct and indirect discrimination on all of the seven grounds enumerated by the Convention, covering all workers (including migrant workers) and all aspects of employment (education, vocational training, access to employment and particular occupations and terms and conditions of employment). The Committee notes however that the Government reiterates that its legal framework does not discriminate between men and women workers or between a national and a non-national worker, and that any claims to the contrary are dealt with in accordance with the justice system in place in the country. The Committee welcomes the recent steps to move forward on the adoption of a national equality policy and asks the Government to provide detailed information on the progress achieved in the development of such a policy with a view to eliminating any discrimination on all the grounds set out in Convention – in collaboration with the relevant stakeholders. Nevertheless, noting that the Government ratified the Convention in 1978 and still has not adopted legislation containing specific provisions defining and prohibiting discrimination in employment and occupation, the Committee urges the Government to take concrete steps to include – as part of its national equality policy – legislation specifically prohibiting discrimination, both direct and indirect, in the public and private sectors, on at least all the grounds set out in the Convention, covering all workers and all aspects of employment, and ensuring effective means of redress, as the current Labour Law (Royal Decree No. M/51), does not include these provisions. The Committee requests the Government to provide specific information on the concrete steps taken in this regard.

Discrimination against migrant workers. The Committee draws the Government’s attention to the statistics mentioned in the ILO Report on global estimates for migrant workers, published in 2015 (page 79), according to which two out of every three workers in Saudi Arabia are migrants and that two-thirds of female migrant workers are domestic workers. In its previous comments, the Committee had noted the Government’s efforts to address the situation of migrant workers and particularly its statement that the sponsorship system had been abolished by legislation years ago. However, the Committee had expressed concern about the fact that this system may still be applied in practice and that, under the current employment system, migrant workers suffering abuse and discriminatory treatment may still be reluctant to make complaints out of fear of retaliation by the employer or because of uncertainty as to whether this would lead to a change of employer or to deportation. In its response, the Government reiterates that migrant workers are temporary foreign workers whose stay in the country depends on a contractual relationship. Nevertheless, recognizing that the employment relationship is a contractual relationship between a worker and an employer, the Government reaffirms that the sponsorship system was abolished and legislation adopted to ensure that migrant workers may change workplace and work when the labour contract ends or when the employer fails to observe any of the duties specified in the labour contract. According to the Government, the law gives a worker the right to get out of a contract of a definite duration before the end of the contract without the employer’s consent (section 81 of the Labour Law, Royal Decree No. M/51) and the Ministry has launched awareness campaigns with respect to the rights and duties of both parties. As regard the decree establishing the possibility of changing employers when a judgment is pending, the Government confirms that Ministerial Order No. 1982 was adopted on 3 June 2016 and that it specifies, under Part II entitled “Conditions, rules and procedures governing the transfer of a foreign worker’s service”, that the Minister or the mandated delegate may approve the transfer of a foreign worker’s service to another employer – without the consent of the current employer for whom a worker works – in the following cases: (i) pending a lawsuit before one of the judicial bodies where a delay was caused by the employer; and (ii) upon the recommendation of a judicial body during the examination of a lawsuit in order to avoid any possible negative impact on the worker. Furthermore, the Schedule of the infringements mentioned under Part I of Ministerial Order No. 4786 of 2015 specifies penalties for 58 offences (for example, for providing false information to the Ministry to obtain a work permit for a foreign worker, for selling a work permit, or for employing migrant workers without a work permit) imposed on any person who violates the Labour Law. The Committee notes the adoption in 2013 of the implementing Regulation on protection from abuse which concerns victims of violence (physical, psychological and sexual) – including in the context of a “sponsorship” relationship – whereas the Government informed the direct contacts mission as well as this Committee in 2014 that the sponsorship system was abolished by legislation some years ago.

As regards measures taken to ensure effective protection of all migrant workers against discrimination on the grounds set out in the Convention, the Government draws attention to the existing legislation and to a series of measures, such as, for example: awareness-raising activities with respect to employers’ rights and duties through the mass media and social media; development of a Manual intended for migrant workers; provision of free-of-charge telephone cards to migrant workers upon their arrival at the airports (these cards include free minutes for calling their families in their countries of origin in addition to the possibility for the Ministry to send text messages aimed at raising workers’ awareness about their duties and rights in the country); and the launching by the Ministry of Labour of the service of “Labour Adviser” aimed at implementing workers’ right to information in order to increase workers’ awareness of their rights and duties as enshrined in the Labour Law and its implementing regulation, in addition to direct responses to labour queries, and directing complainants to the competent body, in both Arabic and English, through a website. These initiatives are set within the context of the Ministry’s role of regulating the relationship between workers and employers with respect to sensitizing and protecting foreign workers. The Committee requests the Government to continue to provide information on concrete measures taken or envisaged to ensure that all migrant workers enjoy effective protection against discrimination on the grounds set out in the Convention, with a particular focus on the effective abolition of the sponsorship system in practice, and to assess the impact of Ministerial Order No. 1982 of 2016 – that is, does it provide sufficient flexibility to change workplaces and better access of migrant workers to dispute settlement mechanisms in practice. As regards the Regulation on protection against abuse, the Committee asks the Government to provide information on the number of complaints, disaggregated by sex, lodged in the context of a sponsorship labour relationship, and on whether any of the complaints have been brought to courts of law, on penalties inflicted in cases of conviction and remedies provided. The Committee requests the Government to continue to take measures to increase the enforcement of existing legislation and conducting sensitization and awareness-raising activities concerning the respective rights and duties of workers and employers. The Committee requests the Government to communicate a copy of the Manual developed for migrant workers.

Discrimination against domestic workers. In its previous comments, the Committee noted the adoption of Order No. 310 on 15 July 2013 regulating the employment of domestic workers and similar categories of workers and indicated that, while the Order constitutes a first step towards improving the protection of foreign domestic workers against discrimination, including sexual harassment, it does not contain provisions explicitly allowing them to change employer or leave the country without the consent of the employer. In its response, the Government reiterates that it is constantly striving to take the necessary measures to improve the conditions of all workers, and mentions again the same legal provisions and practical information previously provided. As regards bilateral agreements, the Government indicates that these agreements include the setting up of joint technical committees which are periodically convened to review the implementation of both parties’ obligations and discuss any new measures required. The Ministry also coordinates with the embassies of some countries the organization of visits to be carried out to several centres and housing complexes where workers live to verify their living conditions. The Committee notes that, between February 2014 and May 2016, 29,917 lawsuits involving domestic workers were settled by the 37 committees specialized in the settlement of labour disputes related to domestic workers: 40 per cent of lawsuits focused on delayed payment of wages; 30 per cent on refusal to work for an illegitimate reason; 17 per cent on refusal to work for a legitimate reason; 13 per cent for others reasons (transfer of services, increased wages, etc.). A total of 92 per cent of cases have been settled during the period of their examination. In this regard, the Committee also refers to its 2015 observation on the application of the Forced Labour Convention, 1930 (No. 29). As regards the statistics mentioned above, the Committee asks the Government to give concrete examples of what are considered “legitimate” or “illegitimate” reasons to refuse to work. The Committee also asks the Government to continue to take measures to improve the situation of migrant domestic workers in relation to discrimination and abuse, including through enforcement and awareness-raising measures. It reiterates its request for specific information on the functioning of the labour dispute settlement committees, as well as information on the impact of this procedure on the employment relationship between employers and migrant domestic workers. The Committee encourages the Government to continue to cooperate with countries of origin towards the full and effective implementation of bilateral agreements regarding domestic workers, and requests the Government to provide information on their impact on the protection of domestic workers against abuse and discriminatory treatment on the grounds set out in the Convention.

Equality of opportunity and treatment between men and women. In its previous comments, the Committee had noted the positive developments in women’s employment and requested the Government to pursue its efforts to increase women’s participation in a wider range of occupations and to provide information on the impact of the measures taken in this regard. The Government affirms that it is deploying enormous efforts to increase women’s wider participation both in the public and private sectors, and mentions a series of texts adopted since 2003 (already noted by the Committee) which relate to increasing job opportunities for women and their participation in a wider range of occupations. With respect to women’s participation in decision-making, the Government indicates that women have become members of the Shoura Council and that they also increasingly assume leading and supervisory positions in several government bodies, but the Government does not provide recent statistical data in this regard. The Government’s efforts are also focusing on the private sector with the creation of the position of Undersecretary for Special Programmes who is responsible for promoting women’s employment and has issued several decisions in this respect (work in lingerie stores, telework, productive families, opening of new work areas, etc.). The Committee further notes that the Government provides information on the results of several studies on women’s employment and on how to increase their participation in the labour market. These results indicate that 85 per cent of women’s jobs are in retail sales, construction, manufacturing and health. According to the studies, the sector of retail sales will require the employment of 300,000 Saudi women by 2020 because it is considered to be the most suitable and receives the biggest share of jobs in the economy. Furthermore, a large percentage of non-employees are women who hold university degrees, though 87 per cent of the new jobs allocated to Saudi women require medium skills. The studies also indicate that unemployment levels for men being lower for Saudi men, 50 per cent of jobs resulting from Saudization will go to Saudi women. Consequently, the Government states that it has identified the following seven areas to focus on: laws and regulations, social awareness, skills and qualifications, institutions and support, building career paths, empowering employers and job creation. The Committee notes further from the Government’s report that a number of initiatives are being carried out to address the challenges relating to women’s employment. For example, the identification of telework as one of the main priorities of the new Saudi Government in 2015, the aim of which is to increase opportunities for women, in particular in rural areas and for persons with special needs; the decision to invest heavily in infrastructure development required for transport and mobility; the development of a legal framework and flexible arrangements for part-time work and a participative economy for the purpose of granting employees as well as employers more flexibility; and the Saudization of the sector of mobile phone repairs and sales for both men and woman at 19 technical colleges and institutes at the national level (as of August 2016, 6,200 women completed these workshops and will benefit from the support provided by the National Business Leadership Institute). The Committee notes that the report indicates that the Ministry of Education has been entrusted by Cabinet Decision No. 152 of 2 August 2016 to prepare the necessary arrangements for establishing childcare facilities. Noting the numerous initiatives taken to promote women’s employment, the Committee encourages the Government to continue its efforts to increase the participation of women in a wider range of occupations, not only those traditionally considered to be “suitable” to the nature of women but also in non-stereotyped jobs and decision-making positions, and to provide information on the impact of the measures taken in that regard. The Committee also requests the Government to provide recent statistical data on the employment rate of Saudi women and men in the various economic sectors and occupations. Noting that the Government has identified seven areas to work on to overcome the obstacles hindering women’s employment, the Committee asks the Government to provide detailed information on any action taken regarding the areas for action identified and results achieved. The Committee welcomes the decision to entrust the Ministry of Education with preparing the necessary arrangements and rules for establishing childcare facilities and requests the Government to provide information on the progress achieved in that regard.

Restrictions on women’s employment. With regard to the restrictions on women’s employment to “fields suitable to their nature”, the Committee notes that the Government again reiterates that section 149 of the Labour Law prohibits the employment of women in hazardous jobs or in work that would jeopardize their health or expose them to specific hazards, and no longer refers to its previous statement that the repeal of this provision will be given serious consideration, in the context of future amendments to the Labour Law. The Committee urges the Government to review section 149 of the Labour Law to ensure that any restrictions on women’s employment are strictly limited to maternity protection, and to repeal Council of Labour Force Order No. 1/19M/1405(1987), paragraph 2/A, which establishes criteria for women’s work.

Monitoring and enforcement. Noting that no cases of discrimination had been registered by the labour dispute settlement bodies, the Committee had asked the Government to take steps, including with ILO technical assistance, to reinforce the capacity of judges, labour inspectors and other officials to identify and address discrimination in employment and occupation, and to provide information on any specific preventive and enforcement activities carried out by the labour inspection services in relation to discrimination in employment and occupation, and their results. In its response, the Government reiterates that it constantly seeks to benefit from ILO expertise indicates its readiness to participate in relevant workshops. In regard to the Committee’s request that the Government provide relevant information on Royal Order No. 8382, which establishes women’s units in courts and judicial bodies under the supervision of an independent women’s department in the main judicial system, the Government confirms the inauguration of women’s units in courts. However, the Government’s report does not provide information on the competence and jurisdiction of these units. Noting that the Government has not provided details on preventive and enforcement activities carried out by labour inspectors in relation to discrimination in employment and occupation, the Committee reiterates its request for information in this regard. Further, noting that the Government has provided statistical information on the number of complaints relating to alleged violations of rights provided by regulations and under consideration by bodies of first instance and higher judicial bodies, the Committee asks the Government to indicate whether these statistics include complaints submitted or detected by labour inspectors. The Committee also requests the Government to provide information on any further ILO technical assistance sought to reinforce the capacity of judges, labour inspectors and other officials to identify and address discrimination in employment and occupation. The Committee also asks the Government to provide clarifications on the competence and jurisdiction of women’s units in courts and on the number and nature of the cases examined by these units.

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