Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Mozambique (Ratification: 1977)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee previously noted that section 66 of Labour Act No. 23/2007 equates sexual harassment with a disciplinary offence and provides that victims shall be entitled to compensation in an amount of 20 times the minimum wage, without prejudice to any judicial cause of action under the applicable law. While noting the absence of information provided by the Government on the application of section 66 of the Labour Act in practice, the Committee notes the Government’s indication, in its report, that a draft new Labour Act, that would contain specific provisions and measures to combat sexual harassment, is currently being reviewed by the National Assembly. It further notes that: (1) Act No. 10/2017 of 1 August approving the general status of state employees and agents, forwarded by the Government, provides that state employees and agents shall not harass materially, morally or sexually within or outside the workplace, as long as it interferes with the stability, employment or career progression of the harassed person; and provides for a disciplinary offence of downgrading (sections 43(2) (g) and 98(3)(e)); and that (2) section 205 of the new Penal Code (Act No. 24/2019 of 24 December 2019) now provides for a penalty of imprisonment of up to two years in case of sexual harassment, while limiting the scope of application of the penalty to acts intended at obtaining “an advantage or a favour of a sexual nature” and resulting from an abuse of authority. The Committee wishes to recall in that regard that, to be effective, the prohibition of sexual harassment must not only cover behaviour, acts or words intended to obtain sexual favours, but also types of behaviour, acts or words with a sexual connotation which have the effect of creating an intimidating, hostile or humiliating work environment for an individual. It also emphasizes that the prohibition must not only apply to persons exercising authority, such as a hierarchical superior or an employer, but also work colleagues and even clients of enterprises, or other persons encountered in the work context (see General Survey on the fundamental Conventions, 2012, paragraph 789).

In addition, the Committee takes note of the new Gender Equality Policy and Implementation Strategy, adopted in 2018, which sets as specific objective and strategic actions to develop and implement strategies: (1) to prevent, eliminate and transform social and cultural practices that legitimize and tolerate gender-based violence such as sexual harassment, sexual assault, premature marriages and early pregnancy, including in collaboration with the private sector, as well as (2) to ensure the effective implementation of the legislative provisions that prohibit and punish all forms of gender-based violence. It further notes the adoption of the National Plan for Preventing and Combating Gender-Based Violence for 2018–2021, which defines six strategic areas to combat gender-based violence and discrimination, such as: (1) strengthening the legislation; (2) implementing awareness-raising actions, among others at the enterprise level; and (3) collecting statistical information. The Committee however notes that, in its 2019 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed specific concerns at: (1) the rampant gender-based violence against women and girls committed in the public and private spheres and the underreporting of such cases; and (2) reports of a high incidence of sexual harassment against women in the workplace. It further notes that the CEDAW and the UN Committee on the Rights of the Child both expressed deep concerns about the prevalence of sexual harassment and violence of girls in schools, as well as to and from schools, and impunity for the perpetrators, which constitute a barrier for girls access education (CEDAW/C/MOZ/CO/3-5, 30 July 2019, paragraphs 25(a) and (b), 31(d) and 33(e) and CRC/C/MOZ/3-4, 27 November 2019, paragraph 40). In light of the ongoing revision of the Labour Act, the Committee asks the Government to take the necessary measures to include specific legislative provisions: (i) defining and explicitly prohibiting all forms of sexual harassment in the workplace, both quid pro quo and hostile work environment, and (ii) whose scope of application is not limited to persons exercising authority. It further asks the Government to provide information on the measures taken to prevent and combat sexual harassment in education institutions and at workplaces, including in collaboration with employers’ and workers’ organizations and the private sector, in particular in the framework of the new Gender Equality Policy and Implementation Strategy and the National Plan for Preventing and Combating Gender-Based Violence for 2018-2021. Finally, the Committee asks the Government to provide information (i) on the application of section 66 of the Labour Act; sections 43(2) (g) and 98(3)(e) of Act No. 10/2017; and section 205 of the new Penal Code, in practice, specifying the measures taken to raise awareness of the new provisions and the remedies available to victim; as well as (ii) on the number of complaints or cases of sexual harassment in employment and occupation dealt with by labour inspectors, the Ombudsman, the courts or any other competent authority, the sanctions imposed and remedies provided.

Article 1(1)(b). Discrimination on the basis of HIV and AIDS. The Committee previously noted that Act No. 19/2014 on HIV/AIDS provides for the equality and non-discrimination of workers and job applicants living with HIV/AIDS, in both the private and public sectors, including domestic workers, and calls upon employers to establish policies and programmes to prevent and combat HIV and AIDS at the workplace (sections 47, 51 and 53). It asked the Government to provide information on the practical application of Act No. 19/2014 and to consider extending the coverage of the current legislation so as to prohibit discrimination also on the basis of perceived HIV status. The Committee notes the Government’s indication that, in 2018, presentations were made to 19,580 workers, including 15,857 men and 3,723 women, in 693 enterprises, in order to raise awareness on HIV/AIDS in the workplace. Welcoming this information, the Committee takes also note of the adoption of a new National Strategic Plan to Combat HIV/AIDS for 2015–2019 (PEN IV). It notes more particularly that the strategic plan acknowledges that, there has been a reduction in the implementation of programmes to combat HIV/AID at the workplace level, in the private sector, as a result of reduced funding, and provides for better coordination of actions and implementation of public–private partnerships. Referring to its comments regarding sexual harassment, it further notes that the strategic plan aims, inter alia, at raising awareness on HIV/AIDS and providing legal information services in view of confronting the practices of gender-based violence that exposes women and girls to the vulnerability of HIV/AIDS infection. In that regard, the Committee notes that several UN treaty bodies recently expressed concern at the high prevalence of HIV among girls and women, the efforts made under the national strategic plan to combat HIV/AIDS notwithstanding, and recommended that the Government strengthen awareness-raising campaigns aimed at reducing related stigma and discrimination (CEDAW/C/MOZ/CO/3-5, 30 July 2019, paragraph 35(a) and CRC/C/MOZ/3-4, 27 November 2019, paragraph 36). The Committee asks the Government to continue to provide information on: (i) the practical application of Act No. 19/2014, including information on any policies and programmes adopted and implemented at the workplace to prevent and combat discrimination based on HIV/AIDS, including as a result of public-private partnerships, in particular in the framework of the National Strategic Plan to Combat HIV/AIDS for 2015–2019; and (ii) the number of complaints or cases alleging discrimination based on HIV/AIDS dealt with by the labour inspectors or any other competent authorities. Recalling that national law and policies should provide for protection from discrimination and stigma on the basis of both real and perceived HIV status in order to cover also those discriminated against on the basis of stereotyping (see General Survey on the fundamental Conventions, 2012, paragraph 812), the Committee again asks the Government to consider extending the coverage of the current legislation so as to prohibit discrimination and promote equality of opportunity and treatment in employment and occupation also on the basis of perceived HIV status, as contemplated in the HIV and AIDS Recommendation, 2010 (No. 200).

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee previously noted that occupational gender segregation persists, and early marriages along with other factors have repercussions on women’s participation in the labour market. Regretting the lack of information provided by the Government on the measures adopted to promote, in practice, equality of opportunity and treatment in employment and occupation of men and women, the Committee notes that the new Gender Equality Policy and Implementation Strategy of 2018, operationalized by the IV National Plan for the Advancement of Women (PNAM) 2018–2024, sets as specific objectives and strategic actions to: (1) promote equal rights and opportunities for girls and boys, as well as for women and men, in access to education and quality training; (2) eliminate gender stereotypes in education, including in increasing the number of girls opting for Science, Technology, Engineering and Mathematics (STEM) subjects; (3) implement specific measures to increase the proportion of women in the labour market, as well as in decision-making bodies, at all levels; and (4) promote equal access, control and ownership of productive resources, including land and financial resources, by women. As regards the measures to combat school dropout, the Committee welcomes the adoption of Act No. 19/2019 of 22 October aimed at preventing and combating early marriages by only allowing unions between individuals who have reached the age of 18 years. However, it notes that, according to the National Institute of Statistics (INE), in 2017, the illiteracy rate was estimated at 49.4 per cent for women compared to 27.2 per cent for men, while the enrolment rate in the tertiary education was estimated at 39.2 per cent for women, compared to 60.8 per cent for men. It further notes that the active female population rate decreased from 65.2 per cent in 2007 to 52.6 per cent in 2017 (compared to 73.8 per cent and 62.8 per cent respectively for men), with women being still mostly represented in sectors such as education, health and social work, while they were less represented in traditionally male dominated sectors such as construction and transport (Mulheres e Homens, 2018, INE). The Committee further notes that, in its 2019 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women expressed concern about (1) the high school dropout rate among girls and the disproportionately high level of illiteracy among women and girls; (2) the low enrolment rate among women and girls in traditionally male-dominated fields of education; (3) the employment of girls between 12 and 15 years as domestic workers, pursuant to article 4 of Decree No.40/2008 on domestic work; (4) the number of women and girls who are trafficked for purposes of forced labour and sexual exploitation; (5) the limited access by rural women to land ownership, formal credit and loans; as well as (6) the insufficient level of human, technical and financial resources to implement gender equality legislations, policies and plans (CEDAW/C/MOZ/CO/3-5, 30 July 2019, paragraphs 17, 27, 31, 33 and 39). The Committee takes note with concern of this information. In light of the persistent occupational gender segregation, the Committee asks the Government to provide information on the measures taken, in particular in the framework of the Gender Equality Policy and Implementation Strategy and the IV National Plan for the Advancement of Women 2018-2024, to improve equality of opportunity and treatment between men and women in employment and occupation in order to (i) enhance women’s entrepreneurship and access to the labour market, land and credit, and (ii) improve the literacy rate of women and girls while reducing early dropout from school. It further asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.

Discrimination based on race, colour or national extraction. Migrant workers. The Committee notes that, in its 2018 concluding observations, the UN Committee on Migrant Workers (CMW) was concerned about reports that migrant workers, in particular those in an irregular situation, are often subjected to labour and sexual exploitation, particularly in the mining, agriculture, manufacturing, tourism and domestic work sectors (CMW/C/MOZ/CO/1, 16 October 2018, paragraphs 27(b) and 31). The Committee recalls that under the Convention, all migrant workers, including those in an irregular situation, must be protected from discrimination in employment on the basis of the grounds set out in Article 1(1)(a) (see 2012 General Survey, paragraph 778). The Committee asks the Government to provide information on the measures taken to ensure equality of opportunity and treatment for migrant workers, in particular by combating any form of discrimination prohibited by the Convention against migrant workers, including those in an irregular situation. It asks the Government to provide information on the number and nature of cases where migrant workers, including those in an irregular situation, faced discrimination in employment and occupation, which have been dealt with by the labour inspectorate, the Ombudsman or the courts, as well as the sanctions imposed and remedies provided.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and asks the Government to provide information in response to the questions raised in that observation.

Article 5. Special measures. Persons with disabilities. The Committee previously noted that, as a result of section 28(1) of the Labour Act, which provides that employers shall promote the adoption of appropriate measures to enable persons with disabilities to enjoy the same rights as other workers with respect to access to employment, vocational training and promotion, various activities aimed at promoting access to training and employment of persons with disabilities were contemplated under the “Action Plan to Assist Victims of Mines and Persons with Disabilities”. Regretting the lack of information provided by the Government on the implementation of the action plan, the Committee notes that the Second National Action Plan for Disability (PNAD II) for 2012–2019, acknowledges that the living conditions of persons with disabilities are generally more precarious than the rest of the population as a result, inter alia, of low education level and poor access to the labour market, as reflected by their unemployment rate which is up to four times higher than the rest of the population (39 per cent and 9 per cent respectively). It notes that the PNAD II sets as specific objective to enhance equality of rights and opportunities of persons with disabilities, in particular in education and access to employment. The Committee asks the Government to provide information on any measures taken to promote equal opportunities and treatment in education, employment and occupation of persons with disabilities, in particular in the framework of the Second National Action Plan for Disability for 2012-2019. It again asks the Government to provide information on the application of section 28(1) of the Labour Act in practice, in order to promote access of persons with disabilities to employment and vocational training.

Enforcement. Regretting the repeated lack of information provided by the Government on the enforcement of the Convention, the Committee notes that, in 2021, the Government will benefit from ILO technical assistance in the framework of the “#Trade4DecentWork” project with a view to improve the implementation of ILO Fundamental Conventions at national level. The Committee asks the Government to provide information on any measures or activities undertaken to raise public awareness of the provisions of the Convention, as well as on the procedures and remedies available, in particular as a result of the technical assistance provided by the ILO. It further asks the Government to provide information on any cases or complaints concerning discrimination in employment and occupation detected by or reported to labour inspectors, the Ombudsman, the courts or any other competent authorities, as well as any decision issued in this regard, specifying the sanctions imposed and remedies provided.