Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Democratic Republic of the Congo (Ratification: 2001)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Sexual harassment. The Committee notes with interest that the Ministry of Labour and Social Services, with the approval of the National Labour Council, adopted Order No. 12/CAB-MIN/TPS/114/2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes, unfortunately, that a copy of the Order was not received. It also notes that in its response to the Committee on the Elimination of Discrimination against Women (CEDAW/C/COD/Q/5/Add.1, 17 May 2006), the Government states that the Ministry on the Status of Women and the Family along with human rights NGOs are conducting awareness-raising campaigns on the problem of sexual harassment. The Committee looks forward to receiving a copy of Ministerial Order No. 12/CAB-MIN/TPS/114/2005 along with the Government’s next report. Recalling from its previous comment that the Labour Code prohibits, but does not define sexual harassment, the Committee again reminds the Government that sexual harassment includes both the notion of “quid pro quo” harassment and hostile work environment, as set out in the Committee’s general observation of 2002, and it hopes that both of these elements will be prohibited in law and in practice and requests information in this regard. Also, having noted that the only remedy available to victims of sexual harassment under the Labour Code is to terminate the employment contract for serious misconduct of the employer, the Committee hopes that additional avenues of redress will be available to alleged victims of sexual harassment that, for example, would allow workers to bring a sexual harassment complaint without jeopardizing their employment. Finally, please also include information on the above awareness-raising campaigns and on their impact in addressing sexual harassment in employment and occupation.

2. Article 1(1) of the Convention. Prohibition of discrimination. The Committee notes that the new Constitution was approved by referendum and subsequently came into force in February 2006. Recalling its earlier comments, the Committee notes that article 13 (prohibition of discrimination) only applies to Congolese nationals. It reminds the Government that non-nationals cannot be excluded from the scope of application of the Convention and asks for an indication in its next report on how non-nationals are protected against discrimination on the grounds set forth in Article 1(1)(a) of the Convention.

3. Noting that the Government’s report does not respond to all of the points raised in its previous comments, the Committee hopes the Government will provide full information on the following points set forth in its earlier direct request.

4. The Committee notes that the Labour Code of 2002 applies to all employers and workers, with the exception of career members of the state public services regardless, inter alia, of race, sex, civil status, religion, political opinion, national extraction, social origin (section 1). It also notes that section 62 of the Labour Code provides that, among other grounds, race, colour, sex, marital status, family responsibilities, pregnancy, confinement and its consequences, religion, political opinion, national extraction, social origin and ethnic group are not valid reasons for dismissal. In the absence of a provision in the Labour Code explicitly defining and prohibiting direct and indirect discrimination in all fields of employment and occupation, and not only in relation to dismissal, the Committee requests the Government to indicate in its next report the manner in which protection against discrimination is ensured in other areas of employment and occupation, such as access to employment, vocational training and terms and conditions of employment. Furthermore, it hopes that the Government will examine the possibility of amending the Labour Code so as to include a definition and prohibition of discrimination, taking into account the requirements of the Convention.

5. Discrimination on grounds of sex. The Committee notes that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee wishes to specify that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. Given the Government’s indication in its response to CEDAW that it is taking into account all matters inconsistent with respect to women’s fundamental rights in the harmonization of its Family Code (CEDAW/C/COD/Q/5/Add.1, paragraph 20), the Committee asks the Government to provide information in its next report on the outcome of this harmonization process with regard to prohibiting discrimination in employment and occupation on the basis of sex. The Committee also requests the Government to indicate the measures adopted or envisaged to amend the other provisions mentioned above so as to bring them into conformity with the Convention.

6. Discrimination on grounds of race or ethnic origin. The Committee notes the report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2004/34, 10 March 2004, paragraphs 96 and 97), according to which, the Batwa, a minority indigenous people, are subject to large-scale acts of discrimination of all kinds by other parts of the population and have no access to education, health and housing. The Committee requests the Government to indicate whether an analysis has been undertaken or is envisaged of the socio-economic situation of the Batwa and, if so, to provide copies of these studies with its next report. It also requests the Government to provide information on any other initiatives adopted or envisaged to eliminate all forms of discrimination based on race or ethnic origin, including against the Batwa, in employment and education.

7. Article 2. National policy. The Committee notes that article 14 of the Constitution provides that the public authorities shall see to the elimination of all forms of discrimination against women and ensure the protection and promotion of their rights. It also notes the National Programme for the Promotion of Congolese Women, which was established in response to the recommendations of the World Conference on Women (Beijing, 1995). The Committee would be grateful if the Government would provide information on the implementation of this programme and on the results achieved in practice through activities to promote equality of opportunity and treatment between men and women in employment and occupation. However, noting that the national programme referred to in the Government’s earlier report is essentially targeted at achieving equality of men and women, the Committee would be grateful if the Government would indicate the measures adopted or envisaged, within the framework of the national policy, to promote compliance with the principles set out in the Convention in relation to the other grounds that it covers, namely race, colour, religion, political opinion, national extraction and social origin.

8. Article 3(a). Cooperation of the social partners. The Committee notes that section 37 of the National Interoccupational Collective Labour Agreement provides that “women shall enjoy the same rights at work as men in accordance with the legal provisions and regulations”. It requests the Government to continue providing information in its next report on the measures adopted to cooperate with the social partners in promoting the acceptance of the national policy of equality of opportunity and treatment in relation to all the grounds of discrimination set forth in the Convention, and the results achieved in practice.

9. Article 3(b). Educational programmes. The Committee again requests the Government to provide information on educational programmes intended to secure the acceptance and observance of the national policy of equality of opportunity and treatment.

10. Article 3(d). Employment in the public service. The Committee notes Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public service. Noting that this Act does not contain any provision prohibiting discrimination in employment and occupation, the Committee requests the Government to provide information in its next report on the manner in which the principles of equality of opportunity and treatment in employment and occupation apply to career members of the public service. Furthermore, the Committee notes that, under section 25(2) of the Act, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee wishes to emphasize that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. It therefore requests the Government to provide information on the measures adopted or envisaged to secure for women employees a period of maternity leave which is additional to annual leave and to bring the national legislation fully into conformity with the provisions of the Convention.

11. Article 3(e). Vocational training. The Committee notes section 17 of Ordinance No. 71/055 of 26 March 1971, respecting vocational training, further training and apprenticeship, under the terms of which “employers shall establish systematic training plans for workers in their service. These plans shall take into account the needs of enterprises for trained personnel, without having the effect of excluding certain categories of workers from training plans”. The Committee would be grateful if the Government would provide information on the application of this provision in practice, as well as indications of the measures taken to promote observance of the principle of the Convention in relation to vocational training and guidance services under the direction of a national authority.

12. Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. The Committee again asks the Government to provide information on the provisions respecting the employment or occupational activity of persons covered by Article 4 of the Convention, and the remedies available to such persons.

13. Article 5. Special measures of protection for women. The Committee notes that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code of Orders of the Minister of Labour and Social Insurance defines the nature of jobs which are prohibited for women. It notes that Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children, prohibits the assignment of women to several types of work. The Committee recalls that, following the 1985 resolution on equal opportunities and equal treatment for men and women in employment, special protective measures for women, which are based on stereotyped perceptions of their capacity and role in society, have been challenged and may give rise to violations of the principle of equality of opportunity and treatment. It requests the Government to envisage re-examining, in consultation with the representatives of employers’ and workers’ organizations, and with women workers, the legislative provisions relating to women to determine whether they are necessary and appropriate to achieve the objective of equality of opportunity and treatment, and to keep it informed of the progress achieved in this respect. Furthermore, noting the Government’s response to CEDAW that the Labour Code’s prohibition of night work by women has been amended and that the draft Code is before the Parliament for adoption (CEDAW/C/COD/Q/5/Add.1, paragraph 23), the Committee looks forward to receiving information on the revised night work provision.

14. Parts IV and V of the report form. Court decisions and application in practice. The Committee requests the Government to provide information in its next report on administrative or judicial decisions relating to cases of discrimination based on the grounds set forth in the Convention. The Committee also requests the Government to provide, where available, reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all fields of vocational training and employment, as well as any information enabling the Committee to assess the manner in which the Convention is applied in practice.