Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Bahrain (Ratification: 2000)

Article 1 of the Convention. Discrimination on the basis of political opinion. The Committee recalls that at the 100th Session of the International Labour ConferenceJune 2011, a complaint was filed by some Workers’ delegates at the Conference concerning the non-observance by Bahrain of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), under article 26 of the ILO Constitution. According to the allegations, in February 2011, suspensions and various forms of sanctions, including dismissals, were imposed on members and leaders, as a result of peaceful demonstrations demanding economic and social changes and expressing support for ongoing democratization and reform. The complaint alleged that these dismissals took place on grounds such as workers’ opinions, belief and trade union affiliation. At its 320th Session (March 2014), the Governing Body welcomed a Tripartite Agreement, reached in 2012 by the Government, the General Federation of Bahrain Trade Unions (GFBTU) and the Bahrain Chamber of Commerce and Industry (BCCI), as well as a Supplementary Tripartite Agreement of 2014, and invited this Committee to examine the application of the Convention by the Government, and to follow up on the implementation of the reached agreements. According to the Tripartite Agreement of 2012, the national tripartite committee that had been put in place to examine the situation of those workers that had been dismissed or that were referred to criminal courts should continue its work to ensure the full reinstatement of workers. The Committee notes that under the Supplementary Tripartite Agreement of 2014, the Government, GFBTU and BCCI had agreed to: (i) refer to a tripartite committee those cases which have not been settled which relate to financial claims or compensation and, in the absence of consensus, refer to the judiciary; (ii) ensure social insurance coverage for the period of interrupted services; and (iii) reinstate the 165 remaining dismissed workers from the public service sector and from the major private companies where the Government has shares and from other private companies according to the list annexed to the Supplementary Tripartite Agreement. Noting that the Government provides no information in this respect, the Committee requests it to indicate what specific measures have been taken to implement the Tripartite Agreement of 2012 and the Supplementary Tripartite Agreement of 2014 towards the full application of the Convention, and to inform on the current situation concerning the financial claims or compensation; the provision of social insurance coverage and the reinstatement of the 165 workers dismissed during the 2011 peaceful demonstrations.

Article 1(1)(a) and (3). Grounds of discrimination and aspects of employment and occupation. In its previous comment, the Committee noted that the Labour Law in the Private Sector of 2012 (Law No. 36/2012) does not apply to “domestic servants and persons regarded as such, including agricultural workers, security house-guards, nannies, drivers and cooks” performing work for the employer or the employer’s family members (section 2(b)). The Committee further recalls that sections 39 (discrimination in wages) and 104 (termination considered to be discriminatory) of the Labour Law in the Private Sector do not include race, colour (only mentioned in section 39), political opinion, national extraction and social origin in the list of prohibited grounds of discrimination. The Committee notes the Government’s indication in its report that section 39 prohibits discrimination in wages in a general and broad manner, and that the term “origin” includes national or social origin, race, or nationality, while the term “ideology” includes political conviction. The Committee further referred to the fact that the Labour Law does not define discrimination, does not appear to prohibit indirect discrimination and covers only dismissal and wages, leaving aside other aspects of employment, such as access to vocational training, access to employment and occupation, and terms and conditions of employment. Recalling that clear and comprehensive definitions of what constitutes discrimination in employment and occupation are instrumental in identifying and addressing the many manifestations in which it may occur, the Committee requests the Government to take the necessary measures to include in the Labour Law in the Private Sector of 2012 a definition of discrimination as well as a prohibition of direct and indirect discrimination that covers all workers, without distinction whatsoever, with respect to all grounds provided for in the Convention, including colour, with respect to all aspects of employment, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, and to provide information on any development in this regard. The Committee also requests the Government to provide information on the manner in which adequate protection against discrimination on the grounds of national extraction, social origin and political opinion is ensured in practice, including information on any case examined by the labour inspectorate or administrative bodies or the courts indicating sanctions imposed and remedies provided. Noting that Legislative Decree No. 48 of 2010 regarding the civil service does not include a prohibition of discrimination, the Committee requests the Government to take the necessary measures to ensure that public officials enjoy adequate protection in practice against direct and indirect discrimination in employment and occupation with respect to all grounds provided for in the Convention. In this regard, the Committee encourages the Government to consider including specific provisions in Legislative Decree No. 48 providing for comprehensive protection against discrimination in the civil service.

Sexual harassment. The Committee recalls that it had referred to the need to define and prohibit, expressly, sexual harassment in employment and occupation encompassing both quid pro quo and hostile environment harassment. The Committee notes that the Government refers once again to the Penal Code No. 15 of 1976 which penalizes sexual harassment in the workplace, and to the possibility of submitting complaints of discrimination to the Ministry of Labour. The Government further indicates that it will examine the efficiency of the Penal Code when it will update the Labour Law in the Private Sector in the future. Recalling that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, and that addressing sexual harassment through criminal proceedings is not sufficient due to the sensitivity of the issue, the higher burden of proof, and the limited range of behaviours addressed, the Committee once again urges the Government to take steps to prohibit in the civil or labour law both quid pro quo and hostile environment sexual harassment and to provide remedies and dissuasive sanctions. It also asks the Government to take practical measures to prevent and address sexual harassment in employment and occupation, and to provide detailed information in this regard. The Committee reminds the Government that it can avail itself of the technical assistance of the Office in this respect.

Article 3(c). Migrant workers. The Committee recalls that the Labour Law on the Private Sector excludes “domestic servants and persons regarded as such, including agricultural workers, security house-guards, nannies, drivers and cooks” which are, in their great majority, migrant workers, from the coverage of the non-discrimination provisions. The Committee also recalls that it has been raising concerns regarding the particular vulnerability of migrant workers to discrimination, in particular migrant domestic workers. In its previous comments, the Committee referred to sections 2 and 5 of Ministerial Order No. 79 of 16 April 2009 which give migrant workers the right to change employers subject to approval by the Labour Market Regulatory Authority, but noted the Government’s indication that the employer generally had the right to include in the employment contract a requirement limiting the approval of a transfer to another employer for a specified period, which the Committee considered as undermining the objective of Ministerial Order No. 79 of 2009. In this regard, the Committee notes the Government’s indication that under section 25 of Law No. 19 of 2006 on the Labour Market Regulatory Authority and Ministerial Order No. 79 of 2009, foreign workers may transfer to another employer without the agreement of the current employer. The Government further indicates that, of the requests accepted by the Labour Market Regulatory Authority between the years 2013 and 2014 (which is 84 per cent of the total number of submissions), 43.5 per cent had the approval of the employer, 1 per cent did not have such approval, and the rest (55.5 per cent) were submitted after the termination or expiration of the previous employment relationship. The Committee also notes the Government’s indication that the rejections to transfer requests were usually due to errors in the application such as insufficient documentation and that the employers do not have the right to deprive migrant workers from their rights concerning the freedom of transfer from one employer to another. The Committee further notes the various protective measures available to migrant workers, such as individual complaint mechanisms at the Ministry of Labour, the right of migrant workers to advance their claims to the court directly with an exemption of litigation fees, and their right to communicate with direct contact centres at the Labour Market Regulatory Authority to have their work permit status reviewed. It notes the Government’s general indication of the existence of awareness-raising measures to inform workers of their rights and duties, as well as the stated aim of the labour inspectorate to detect practices of exploitation of migrant workers in the labour market by employers who have not obtained the necessary permits. The Committee requests the Government to provide information on the specific measures adopted to ensure effective protection of all migrant workers, including migrant domestic workers, against discrimination based on the grounds set out in the Convention, including access to appropriate procedures and remedies. The Committee further requests the Government to ensure that any rules adopted to regulate the right of migrant workers to change employers do not impose conditions or limitations that could increase the dependency of migrant workers on their employers, and thus increase their vulnerability to abuse and discriminatory practices. The Committee requests the Government to continue to provide information on: (i) the nature and number of requests received by the Labour Market Regulatory Authority for a transfer of employer without the employer’s approval, disaggregated by sex, occupation and country of origin, and on how many were refused and on what basis; and (ii) the specific measures taken or envisaged to raise the awareness of both migrant workers and their employers of existing mechanisms to advance their claims to relevant authorities, as well as information on the number and nature of claims submitted regarding this matter.

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