Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

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

Articles 1 to 3 of the Convention. Federal anti-discrimination legislation. The Committee welcomes the evaluation of the federal legislation on combating discrimination (the Act of 10 May 2007 amending the Act of 30 July 1981 punishing certain racist or xenophobic acts (the Anti-Racism Act) and the Act of 10 May 2007 to combat certain forms of discrimination (the Anti-Discrimination Act) and the Act of 10 May 2007 on gender discrimination between men and women envisaged by the law and carried out by a committee of experts comprised of members of the judiciary, the Bar and the National Labour Council (including representatives of workers’ and employers’ organizations). This evaluation resulted in the publication of a report in February 2017 containing a number of recommendations and comments. The Committee also welcomes the publication in February 2017 by Unia (the Interfederal Centre for Equal Opportunities, previously the Centre for Equal Opportunity and Action to Combat Racism (CECLR)) of its own evaluation report on federal anti discrimination and anti-racist laws, based on its practical experience and expertise, and on Belgian jurisprudence, which also sets out several recommendations. The Committee asks the Government to provide information on the follow-up to the findings and recommendations contained in the evaluation reports, and on any steps taken or envisaged to strengthen the application and effectiveness of the anti-discrimination legislation at federal level.

Article 1(1)(a). Discrimination on the basis of race, colour and national extraction. The Committee notes that, according to the annual Unia report of 2016, of the 504 new cases opened relating to employment, the cases concerning so-called “racial” criteria (perceived race, skin colour, nationality, ethnic or national origin or ascendance) account for around a third. It also notes that the report entitled “Socio-economic monitoring 2015: Labour market and origin”, published by the Federal Department of Employment, Labour and Industrial Relations and the Centre for Equal Opportunity and Action to Combat Racism (Unia), demonstrates that the disadvantaged position of persons of foreign origin in the labour market is partly attributable to the process of discrimination and to negative attitudes towards them. The report emphasizes that the existence of discrimination in the labour market has been demonstrated on many occasions in recent years, both at recruitment level and during employment, and that the public sector can act as an example in this respect. The report also contains recommendations concerning labour market reform, in-service training and education (which should be more inclusive) and diversity policies (which should be structurally incorporated into human resources policies, in cooperation with the social partners). In this respect, the Committee also notes the concerns expressed by the United Nations Committee on the Elimination of Racial Discrimination (CERD) in its concluding observations, according to which, “despite numerous measures taken by the State party at the federal, regional and community levels, migrants and persons of foreign origin continue to face obstacles to the full enjoyment of economic, social and cultural rights” and “persons of foreign origin, especially those from non European Union countries, face structural discrimination in the field of employment, where ‘ethnic stratification’ seems to exist”. The Committee also notes the concerns expressed by CERD regarding the persistent social exclusion and direct and indirect discrimination faced by Roma regarding the enjoyment of economic, social and cultural rights (CERD/C/BEL/CO/16-19, 14 March 2014, paragraphs 15 and 18). In light of the foregoing, the Committee asks the Government to provide information on any specific steps taken to combat discrimination on the basis of race, colour or national extraction, particularly by means of awareness-raising campaigns aimed at workers and employers, as well as information on the follow-up to the recommendations set out in the “Socio-economic monitoring 2015: Labour market and origin” report. The Committee asks the Government to provide information on the specific situation of Roma in employment and occupation, including with regard to access to education and vocational training for Roma children and young persons, and on the implementation and outcome of the National Strategy for the Integration of Roma adopted in 2012 in the area of education, training and employment.

Discrimination on the basis of sex and religion. With regard to the implementation of the Act of 1 June 2011 prohibiting the wearing in public places of any clothing which completely or mostly conceals the face, the Committee notes the Government’s indication that the Belgian Constitutional Court considered that the Act could indeed “have restrictive consequences with regard to the exercise by certain Muslim women of certain of their fundamental freedoms. [However,] the restriction on their rights is not disproportionate to the objectives pursued and responds to the need of a democratic society. It is, therefore, reasonably justified not to provide differentiated treatment for this category of persons” (Ruling No. 145/2012 of 6 December 2012). The Government also indicates that Unia has not received any complaints by persons wearing the full veil regarding access to the labour market. The Committee also notes that in Flanders, since 1 September 2013, the wearing of religious symbols has been prohibited in education institutions financed by the Flemish Government. The Committee asks the Government to remain alert to the potential discriminatory effects of the Act of 1 June 2011 on the access and retention of Muslim women in the labour market, and to provide information on any assessment of the impact of the prohibition on the wearing of religious symbols in education institutions financed by the Flemish Government on the female students concerned.

Articles 2 and 3. Promotion of gender equality in employment and occupation. Occupational segregation. With regard to the affirmative action measures prescribed in law for the promotion of gender equality in access to posts of responsibility, in the public and private sectors, the Committee welcomes the Government’s indication that the proportion of women on the boards of directors of enterprises listed on the stock exchange doubled between 2011 and 2014, rising from 11 to 22.4 per cent, and from 7.5 to 18 per cent between 2008 and 2013 in smaller enterprises. The Government also indicates that, following the progressive introduction of a gender balance quota, 32 per cent of women occupied a post of responsibility in the public service in 2015. The Committee asks the Government to continue providing information, including statistics, on the results achieved within the framework of the initiatives to increase women’s participation in posts of responsibility in the federal administration and on the boards of directors in public enterprises and enterprises listed on the stock exchange. The Committee asks the Government to provide information on any new steps taken or envisaged to increase women’s participation rate in the economic sectors and occupations in which they are under-represented, including a wider range of vocational training programmes to enable them to access jobs that offer greater possibility of progression and promotion.

Gender mainstreaming in public policy. Promotion of gender equality in public procurement. The Committee notes the information provided by the Government on gender mainstreaming in public policies within the framework of the Act of 12 January 2007, particularly through the establishment of an interdepartmental coordination group, provided for in law and the adoption of the “gender test” by the Federal Government to assist lawmakers in evaluating the impact on men and women, based on sex-disaggregated data. The Committee welcomes the adoption of a new federal plan on the implementation of “Gender Mainstreaming” (2015–19) and notes that it sets out, inter alia, the commitment to include gender mainstreaming in measures concerning awareness raising and training on the prevention of occupational psychosocial risks and the modernization of labour law, including flexible working hours and teleworking, and in general reflection on career development. At other levels, the Committee further notes the adoption of the Ordinance of 29 March 2012 on gender mainstreaming in the Brussels-Capital Region and of the Decree on gender mainstreaming of 11 April 2014 in the Walloon Region, which provide for account to be taken of gender equality within the framework of public procurement and subsidies. The Committee asks the Government to continue providing information on the implementation of gender mainstreaming in public policy, including in action plans, concerning, in particular, the areas of employment and public procurement, specifying whether impact assessments of this mechanism have been carried out and, if so, providing details on the results obtained.

Article 3(a). Collaboration with the social partners. Collective agreements. The Committee notes the Government’s indications that joint committees have addressed the issues of combating discrimination and promoting diversity in collective labour agreements. However, the Committee recalls that it invited the Government to take the necessary steps to encourage the social partners to review the list of prohibited grounds of discrimination set out in collective agreement No. 95 of 10 October 2008 on equality of treatment at all stages of employment so as to include religion and social origin. It also emphasized the 2010 recommendation of the CECLR (now Unia) that the Non discrimination Code of Practice annexed to collective agreement No. 38 of 6 December 1983 on the recruitment and selection of workers might be adopted in its entirety and supplemented, to be appended to collective agreement No. 95. The Committee notes the Government’s indication that the National Labour Council has not acted upon this recommendation but that, on the occasion of the examination of several regulatory texts, the Council supported the principle of non-discrimination, particularly by taking into consideration the question of anonymous CVs and affirmative action measures. The Committee asks the Government to continue providing information on the activities of the National Labour Council to promote non-discrimination and equality, including with regard to the possibility of amending collective agreement No. 95 to cover discrimination on all the grounds set out in the Convention, including religion and social origin, at all stages of employment. The Committee also asks the Government to continue providing information on the practical measures taken by employers’ and workers’ organizations, particularly awareness-raising measures, to combat discrimination and promote equality in occupation and employment, without distinction on the basis of race, colour, sex, religion, political opinion, national extraction or social origin.

Article 5(2). Affirmative action measures. The Committee notes the brief information provided by the Government regarding the Flemish Policy on proportional participation in employment and on diversity. It also notes that the Royal Decrees provided for in the Act of 10 May 2007 to combat certain forms of discrimination (the Anti-discrimination Act) and the Act of 10 May 2007 amending the Act of 30 July 1981 punishing certain racist or xenophobic acts (the Anti-Racism Act) have not been adopted. The Committee notes that this means that possible situations and conditions in which affirmative action measures for the prevention or reparation of the disadvantages relating to one of the protected grounds may not be identified and affirmative action measures therefore not implemented. In this respect, the Committee notes that the need to implement affirmative action measures to combat discrimination, such as numerical targets, and to adopt the Royal Decrees establishing anti-discrimination procedures was emphasized in the above 2015 socio-economic monitoring report. In the absence of information on this subject in the Government’s report, the Committee once again asks the Government to provide information on the progress made in the adoption of these texts and on the application in practice of any affirmative action measures with the objective of ensuring full equality in employment and occupation without distinction on the basis of race, colour, sex, religion, political opinion, national extraction or social origin.

Enforcement of anti-discrimination legislation. Labour inspection. The Committee welcomes the adoption by the Chamber of Representatives of the Federal Resolution of 2 July 2015 regarding the introduction of targeted inspections on discrimination in the labour market. This Resolution calls on the Government to promote ownership by the social partners, particularly by encouraging them to formulate binding codes of best practice in all sectors and self-monitoring systems in both the public and private sectors, and to strengthen enforcement by the labour inspectorate of the application of anti-discrimination legislation. The Committee also welcomes Unia’s recommendation No. 165 of 31 March 2017 (“Research and monitoring regarding discrimination in labour relations by the federal labour inspectorate”), which recommends the following steps: (i) the collection of data relating to discrimination and the development of algorithms for the identification of typical patterns of discrimination; (ii) the development of a legal framework empowering the labour inspectorate, or a third party designated by the labour inspectorate, to carry out situation testing; (iii) the requirement for public bodies and medium and large enterprises to keep for a year all information regarding recruitment and to provide reasons, at the enterprise level, for all decisions of selection, promotion and dismissal; (iv) the establishment of a new team of “workplace discrimination inspectors” (public and private sectors) and competence for the prevention of psychosocial risks, including sexual or other harassment, and for investigation. Emphasizing the crucial role of the labour inspectorate in detecting and addressing cases of discrimination in employment and occupation, the Committee asks the Government to provide information on any action taken following Unia’s recommendations on the enforcement by the labour inspectorate of the anti discrimination legislation, and particularly on the establishment of posts for inspectors specializing in discrimination and the outcome of the collaboration between the labour inspectorate and Unia, and of any other collaboration between the labour inspection services and other bodies responsible for combating discrimination.

Bodies specialized in discrimination. The Committee welcomes the transformation in 2014 of the CECLR into a federal body, now known as “Unia”, of which the anti-discrimination competence now extends to the regions and communities. It also welcomes the conclusion in 2016 by the Institute for the Equality of Women and Men (IEFH) of a protocol with the Brussels-Capital Region and another with the German-speaking community designating the IEFH as the body for promoting equality and combating gender discrimination at these levels. The Committee asks the Government to continue providing information on collaboration with these bodies and on any legislative, administrative or practical action taken on their recommendations to combat effectively all discrimination on the grounds prohibited by anti-discrimination legislation. It also asks the Government to provide information on any measures envisaged to designate a body responsible for addressing discrimination on the basis of language, which is prohibited by law.