Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Congo (Ratification: 1999)

The Committee notes with deep concern that the Government’s report, which has been due since 2018, has not been received. In light of the urgent appeal that it made to the Government in 2021, the Committee is proceeding with the examination of the application of the Convention on the basis of the information at its disposal.

Articles 1 to 3 of the Convention. Protection against discrimination. Legislation. For many years, the Committee has been emphasizing the shortcomings of the Labour Code and the General Civil Service Regulations regarding the protection of workers against discrimination, as these texts do not cover all of the grounds of discrimination and all of the aspects of employment and occupation set out in the Convention. The Committee notes the adoption of the new Constitution on 25 October 2015, articles 15 and 17 of which provide, respectively, that “no one shall be favoured or disadvantaged by reason of their family or ethnic origin, social condition, political, religious, philosophical or other convictions”, which therefore reduces the previous list of grounds of discriminationprohibited by the Constitution, and that “women shall have the same rights as men”. It observes that the previous Constitution (of 20 January 2002) explicitly prohibited “any discrimination on grounds of origin, social or material situation, racial, ethnic or departmental background, sex, education, language, religion, philosophy or place of residence” and that it also provided that “women shall have the same rights as men”. The Committee also notes that a preliminary draft of the Labour Code has been prepared, that it is currently under examination and that it was sent to the ILO in February 2022. The preliminary draft of the Labour Code sent to the ILO provides that “any discrimination or exclusion based on grounds related to race, colour, sex, trade union membership, religion, ethnic origin, political or mutual opinions, family name, place of residence, state of health or disability, family situation or pregnancy, nationality or social origin, and physical appearance, are prejudicial to the principles of the labour legislation” and that “no employer may therefore make the recruitment of personnel subject to conditions relating to these circumstances”. The Committee welcomes these provisions, which extend the list of prohibited grounds of discrimination and therefore constitute real progress in relation to the provisions of the Labour Code that is currently in force. However, it notes certain gaps, such as the absence of a definition and explicit prohibition of discrimination (both direct and indirect), the absence of a reference to discrimination on grounds of “national extraction” (which covers distinctions based on the place of birth and foreign extraction or origin of persons) and of a scope of application of the anti-discriminatory provisions not explicitly covering employment and occupation, as set out in Article 1(3) of the Convention.

With reference to the public sector, the Committee recalls that the General Public Service Regulations prohibit any distinction between men and women in relation to their general application and any discrimination on the basis of family situation in relation to access to employment (sections 200 and 201). In this regard, it notes the indication on the website of the Ministry of the Civil Service, Labour and Social Security of the Republic of the Congo that “progress towards a new legal framework for the public service, to take into account the many changes that have transformed the public sphere, is a major concern for the Government”. It is also indicated that “a preliminary draft of the Bill issuing the General Public Service Regulations was validated by the National Labour Advisory Commission at its ordinary session on 9 October 2020”. In light of the above, the Committee urges the Government to ensure that the future Labour Code and General Public Service Regulations, which are currently being revised, contain provisions defining and explicitly prohibiting any direct or indirect discrimination on, as a minimum, the seven grounds enumerated in the Convention (namely, race, colour, sex, religion, political opinion, national extraction and social origin), as well as on any other grounds that the Government considers it appropriate to include, in all aspects of employment and occupation, that is not only in relation to access to vocational training, employment and the various occupations, but also all terms and conditions of employment (working time, remuneration, conditions governing promotion and termination of employment, and so on). The Committee requests the Government to provide information on the progress made in this legislative process and in the adoption of the texts in question and hopes that it will soon be able to report progress. The Government is requested to provide copies of the texts when they have been adopted.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee recalls that in its previous report the Government indicated that the preliminary draft of the Bill to amend and supplement certain provisions of the Labour Code contained measures to combat sexual harassment. The Committee notes that, in contrast with the current Labour Code, the preliminary draft of the Labour Code recently provided to the Office contains provisions explicitly prohibiting sexual harassment, which is defined as “repeated remarks or behaviour with a sexual connotation with the real or apparent aim of obtaining an act of a sexual nature, whether for the offender or for another person”. The preliminary draft text also provides that employers shall take measures to prevent, inter alia, sexual harassment. The Committee welcomes these provisions, which constitute genuine progress in preventing and combating sexual harassment. However, it observes that these provisions only cover quid pro quo sexual harassment and require “repeated remarks or behaviour”, and that the aspect of a hostile working environment is covered by the definition of moral harassment. The Committee considers that these limitations could have the effect of limiting protection against sexual harassment. The Committee also notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) recommends the Congo to continue to “strengthen the efforts of the National Statistical Institute to ensure an effective national system for the collection of data, disaggregated by age and relationship of the victim with the offender, on gender-based violence and cases of sexual harassment, both in school and at work, against women and girls” (CEDAW/C/COG/CO/7, 14 November 2018, paragraph 27). Lastly, the Committee notes the Government’s indication, in its national report to the United Nations Human Rights Council in the context of the universal periodic review, that the provisions of the draft Criminal Code cover, among others, the criminalization of trespass on domestic premises, violations of the confidentiality of correspondence and sexual harassment (A/HRC/WG.6/31/COG/1, 14 September 2018, paragraph 17). The Committee requests the Government to ensure that the future Labour Code contains provisions that: (i) define and explicitly prohibit both quid pro quo and hostile, intimidating or offensive working environment sexual harassment; (ii) do not require remarks or behaviour to be repeated to constitute sexual harassment; and (iii) envisage the adoption of prevention measures by employers and protection against reprisals for victims and penalties for offenders. The Committee also requests the Government to: (i) take measures at the national and local levels, in collaboration with workers’ and employers’ organizations, to prevent and eliminate sexual harassment, such as awareness-raising measures for employers, workers and education personnel, as well as labour inspectors, lawyers and judges; and (ii) establish information and complaint procedures that take into account the sensitive nature of the subject with a view to bringing an end to these practices and enabling victims to assert their rights without losing their jobs.

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