Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Montenegro (Ratification: 2006)

Article 1 of the Convention. Harassment. The Committee welcomes the inclusion of the provisions on harassment in the Anti-Discrimination Law, 2010. The Committee notes that section 7 of the Law defines and prohibits general “harassment”, while section 8 defines and prohibits “insults, depreciation and harassment” in the workplace (“mobbing”). According to section 8, “mobbing” occurs when “one or more persons, systematically, over a longer period of time, mentally abuse or humiliate another person by way of insults, depreciation, harassment and other activities, bringing that person in an unequal position on any ground referred to in [section 2 of] this Law, which is aimed to harm his/her personal reputation, honour, human dignity and integrity and can cause adverse effects of mental, psychosomatic and social nature or compromise the professional future of the person”. In this connection, the Committee notes the Government’s indication that, in spite of the broad acceptance of the Anti-Discrimination Law by the international community, further amendments were still necessary in order to ensure its full compliance with international standards, and therefore a Bill on amendments to the 2010 Law has been elaborated and submitted to Parliament for adoption. The Government also indicates that some of the most significant changes addressed in the Bill on amendments to the Anti-Discrimination Law refer, among others, to provisions covering sexual harassment. Noting that sexual harassment is not clearly defined under section 8 of the Anti-Discrimination Law, 2010, the Committee asks the Government to take the opportunity of the current legislative reform process to adopt a clear definition of and to prohibit both quid pro quo and hostile environment sexual harassment, including by co-workers, and requests it to provide information on the progress made in this regard. The Committee also reiterates its request for information on the practical measures taken to prevent and address sexual harassment at work, as well as information on whether any cases of sexual harassment have been brought under section 8(1) and (3) of Labour Law No. 49/08, and on the outcome thereof. Please also provide information on any cases of harassment or mobbing brought pursuant to the Anti-Discrimination Law, and the results thereof.

Article 1(2). Inherent requirements of the job. The Committee notes that section 2 of the Anti-Discrimination Law, 2010, allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the “act, action, or failure to act are objectively and reasonably justified by a legitimate purpose”. Pursuant to section 16, which prohibits discrimination in employment, exceptions are also permitted in cases where the distinction, exclusion or preference with regard to a particular job relates to personal characteristics that “represent a real and decisive condition for performing the work”. The Committee recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). The Committee therefore asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2 and 16 of the Anti-Discrimination Law, 2010, including examples of cases in which these exceptions have been used.

Article 2. Promotion of gender equality. The Committee notes the information provided by the Government on the measures taken with a view to promoting equality of opportunity and treatment between men and women. It notes, in particular, the adoption of the second Action Plan for Achieving Gender Equality (2013–17), which sets out time-bound goals, specific action and the bodies responsible for each activity related to the implementation of gender equality policies. In order to promote women’s employment and eliminate all forms of discrimination against women in the labour market, the plan proposes a multifaceted approach to reduce unemployment and the gender pay gap; encourage female entrepreneurship and self-employment; ensure the effective implementation of laws; promote existing complaint mechanisms; and to help men and women reconcile work and family responsibilities. The Committee also notes the information provided by the Government on the training activities targeted at labour inspectors, civil servants, local employees in the education sector, and members of the judiciary with a view to building their capacity on gender equality issues. Finally, the Committee notes the statistical information on the employment and unemployment rate of men and women, as well as the sex-disaggregated data provided in the document “Women and Men in Montenegro”, published biennially by the Montenegro Statistical Office. The Committee asks the Government to continue to provide information on the measures taken within the framework of the Action Plan on Gender Equality (2013–17), or otherwise, to promote equality of opportunity and treatment between men and women in employment and occupation, and to improve women’s access to the labour market, including detailed information on the impact of such measures and the concrete results achieved.

Promotion of equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the information provided by the Government on the measures taken to improve Roma and Egyptian communities’ access to employment and training. In this regard, the Committee notes the Strategy for the Improvement of the Position of Roma and Egyptian (RE) Populations in Montenegro (2012–16), as well as the Employer Survey (2011/12) conducted by the National Employment Agency with a view to assessing employers’ perceptions and expectations with regard to the recruitment of members of the RE communities, and to raise employers’ awareness of equality issues in this respect. According to the Government, 19 per cent of respondents indicated that they would be willing to hire workers from the RE communities, compared to only 5 per cent in the 2010 survey. The Committee asks the Government to continue to take concrete measures to foster equal opportunities of national and ethnic minorities, particularly with respect to access to employment and education, and to pursue its efforts to assess and monitor the progress made in this respect. It also asks the Government to provide information on the outcome of the Strategy for the Improvement of the Position of Roma and Egyptian Populations for the period 2012–16, including statistical information concerning the situation of RE people in the labour market.

Article 5. Special measures. The Committee notes the adoption of the “Decree on subsidies for the employment of certain categories of unemployed persons” on 26 January 2012. The Decree, which is applicable until 31 December 2014, establishes incentives for the recruitment of persons registered with the National Employment Agency who experience labour market disadvantages due to discrimination, in particular workers from RE populations. The Committee notes further the Government’s indication that the Human Resources Management Authority is responsible for monitoring the implementation of measures aimed at achieving proportional representation of ethnic minorities and workers with disabilities in the public sector. The Committee asks the Government to provide information on the application in practice of the Decree of 26 January 2012, including on the results achieved and the number of persons employed. The Committee also requests the Government to provide detailed information on the affirmative action measures put in place to increase the opportunities of ethnic or national minorities and workers with disabilities with regard to vocational training and employment, both in the public and private sectors.

Parts III and IV of the report form. Enforcement. The Committee welcomes the initiative of the Department of Labour Inspection and the Ministry of Human and Minority Rights to collect data, disaggregated by sex, from the monthly reports of the labour inspectorate. In this connection, the Committee notes the information provided by the Government on the number of cases brought before the labour inspectorate between January and June 2013. The Committee nevertheless points out that it remains unclear whether cases of discrimination based on the various grounds provided in the national legislation have been captured by these statistics. The Committee therefore requests the Government to provide information on the number and nature of cases addressed by labour inspectors which relate specifically to complaints of discrimination based on the grounds provided in the national legislation, the sanctions imposed and the remedies provided. Please also provide information on the activities of the Protector of Human Rights and Freedoms, the Ministry for Human and Minority Rights Protection, the Republic Council for Protection of Rights of Minorities and Ethnic Groups and the Council of Human Rights and Freedoms to promote and ensure the observance of the national legislation on non-discrimination in employment and occupation.