Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Solomon Islands (Ratification: 2012)

The Committee notes the Government’s first report on the application of the Convention.

Article 1 of the Convention. Anti-discrimination legal framework. The Committee notes that the Labour Act of 1960 (Cap. 73), the Employment Act of 1981 (Cap. 72) and the Public Service Act of 1988 (Cap. 92) do not contain any provisions regarding discrimination in employment and occupation. It notes however that the Public Service Code of Conduct provides that “discrimination occurs when someone makes a preference or excludes another person from equal opportunity in employment because of issues such as race, age, gender or disability” and that it prohibits discriminatory actions and language. The Committee also notes that the National University Act 2012 (No. 9 of 2012) prohibits discrimination based on religion, ethnicity, place of origin, gender or political allegiance in the context of admission to a university as a member, professor, teacher, student or office holder and graduation (section 46). The Committee further notes that Article 15(1)–(4) of the Constitution prohibits discrimination with respect to legislation, acts of public officials and authorities, and access to certain services and public places, on the basis of race, place of origin, political opinion, colour, creed or sex. The Committee observes that, pursuant to Article 15(5)(b) and (d) of the Constitution, the constitutional provisions concerning the prohibition of discriminatory laws do not apply to non citizens or to laws that make “provision for the application of customary law”. The Committee recalls that the protection against discrimination afforded by the Convention applies to all workers, without any distinction, including to non citizens. Further, the Committee considers that general constitutional provisions are in principle not sufficient to effectively address specific situations of discrimination in employment and occupation, and that in most cases comprehensive anti-discrimination legislation is necessary if the obligations under the Convention are to be discharged. The Committee considers that a number of legislative features contribute to addressing discrimination and promoting equality and, in particular, it welcomes legislation containing the following: coverage of all workers; provision of a clear definition of direct and indirect discrimination; a prohibition of discrimination with comprehensive coverage, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment; the explicit assignment of supervisory responsibilities to competent national authorities; the establishment of accessible dispute resolution procedures; the establishment of dissuasive sanctions and appropriate remedies; the shifting or reversing of the burden of proof to the employer once a prima facie case of discrimination has been established; protection against retaliation; affirmative action measures; provision for the adoption and implementation of equality policies or plans at the workplace, as well as for the collection of relevant data at different levels (see General Survey on the fundamental Conventions, 2012, paragraph 855). In light of the above, the Committee asks the Government to consider introducing a comprehensive anti discrimination legal framework or to include in the national labour legislation prohibitions against direct and indirect discrimination applicable to all workers in the public and private sectors covering all aspects of employment and occupation and at least all of the grounds of discrimination listed in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction and social origin, as well as any other grounds determined in consultation with employers’ and workers’ organizations, in accordance with Article 1(1)(b) of the Convention. The Committee also asks the Government to indicate how it ensures that customary law does not give rise to discrimination based on any of the above grounds, and particularly sex, in relation to employment and occupation.

Articles 1(1)(a) and 5. Discrimination based on sex and protective measures. Restrictions on women’s employment. The Committee notes that section 39 of the Labour Act prohibits the employment of women at night (with exceptions, such as emergency cases, the holding of a position of management or nursing) and that section 40 restricts the employment of women in mines, except for women holding management positions who do not perform manual work, and for women employed in health or welfare services. The Committee also notes that, pursuant to section 80(1)(f), the Minister may make rules for the purpose of “restricting or prohibiting the employment of women in any specified class of undertaking”. The Committee recalls that protective measures for women may be broadly categorized into those aimed at protecting maternity in the strict sense, which fall within the scope of Article 5 of the Convention, and those that are based on stereotypes regarding women’s professional abilities and their role in society. The latter violate the principle of equality in employment and occupation. The Committee also wishes to point out that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking into account gender differences with regard to specific risks to their health. In addition, the Committee wishes to emphasize that, with a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures are necessary, such as those addressing improved health protection for both men and women, adequate transportation and security and social services, to ensure that women can access employment on an equal footing with men (see General Survey on the fundamental Conventions, 2012, paragraphs 839–840). The Committee asks the Government to indicate whether, under section 80(1)(f) of the Labour Act, any rules have been issued by the Minister with a view to restricting or prohibiting the employment of women, and to indicate how it is ensured that, in the context of applying sections 39, 40 and 80(1)(f) of the Labour Act, women are able to access employment on an equal footing with men, and that any limitations or restrictions applying to women’s employment are strictly limited to maternity protection.

Sexual harassment. The Committee notes that there are no legislative provisions defining and prohibiting sexual harassment in employment and occupation. It notes however that, under the Public Service Code of Conduct, public officers have a responsibility to ensure that their workplace is “free from harassment, including sexual harassment” by ensuring that their behaviour is “not offensive, intimidating, humiliating, threatening or inappropriate”. The Committee recalls that sexual harassment is a serious form of discrimination that undermines equality at work by calling into question the integrity, dignity and well-being of workers and that it damages an enterprise by weakening the bases upon which work relationships are built and impairing productivity. The Committee further recalls that definitions of sexual harassment should contain the following elements: (1) any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; (2) the explicit or implicit use of a person’s rejection of, or submission to, such conduct as a basis for a decision which affects that person’s job; and (3) any conduct that creates an intimidating, hostile or humiliating working environment for the recipient (see General Survey on the fundamental Conventions, 2012, paragraphs 789–794). Welcoming the provisions in the Public Service Code of Conduct regarding harassment, in particular sexual harassment, the Committee asks the Government to consider including in the labour legislation a clear definition and prohibition of sexual harassment in employment and occupation encompassing both quid pro quo and hostile environment sexual harassment, supported by an appropriate complaints mechanism. The Committee asks the Government to provide specific information on any practical measures taken or envisaged to protect both men and women workers against sexual harassment.

Article 2. National equality policy. The Committee notes that several policies, such as the National Development Strategy (2011–20), the National Policy on Disability (2005–10) and the National Policy on eliminating violence against women, include strategies aimed at promoting equality, in particular gender equality, and equal opportunities in education and employment for persons with disabilities. While encouraging the Government to develop and implement a national equality policy, as required by the Article 2 of the Convention, the Committee asks the Government to provide detailed information on any measures taken under the above policies, or otherwise, to address discrimination and to promote equality in education, training, employment and occupation without distinction, at least on the basis of sex, race, colour, religion, political opinion, national extraction or social origin. The Committee asks the Government to provide information on any positive measures adopted or envisaged, in accordance with Article 15(5)(f) of the Constitution regarding the advancement of the more disadvantaged members of the community with a view to achieving effective equality of opportunity and treatment, as well as information on the impact of these measures on the employment of such persons.

Gender equality policy. The Committee notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, expressed its concern at the following: the inadequate education infrastructure affecting girls; the lower literacy rate of women (79.2 per cent, compared with 88.9 per cent among men); gender segregation at the tertiary education level and women’s and girls’ traditional choices at rural training centres; the high drop-out rates among girls; the high number of early pregnancies and the dismissal of pregnant girls from school; the absence of measures to promote equal employment opportunities for women in the formal economy; and the absence of sex-disaggregated statistical data on the participation of women in the labour market (CEDAW/C/SLB/CO/1-3, 14 November 2014, paragraphs 32–34). The Committee further notes CEDAW’s observation that “stereotypes and harmful practices constitute a serious challenge to the equality of women and men owing to the prevailing patriarchal society, which subordinates women to men, overemphasizes women’s roles as mothers and housewives and neglects their active participation in decision-making and other aspects of public life” (CEDAW/C/SLB/CO/1-3, paragraph 22). The Committee notes that the Ministry of Women, Youth, Children and Family Affairs launched a National Strategy for the Economic Empowerment of Women and Girls in October 2015. The Committee asks the Government to provide information on any steps taken to promote equality between girls and boys in education and in vocational training, particularly the introduction of measures to encourage girls to attend and stay in school and to undertake vocational training, including in areas where boys traditionally predominate. The Committee further asks the Government to provide information on any steps taken, within the framework of the National Strategy for the Economic Empowerment of Women and Girls, or otherwise, to improve women’s access to paid employment and self-employment, and to combat gender stereotypes and prejudice concerning their aspirations, abilities and suitability for certain jobs. It also asks the Government to provide any available statistics to enable an evaluation of the situation of women and men in the public and private sectors.

Article 3(a). Cooperation with employers’ and workers’ organizations. The Committee notes from the Government’s report that there is no tripartite system in place and that the Department of Labour has sought technical assistance from the Office to establish such machinery. It further notes the Government’s acknowledgement of the critical importance of workers, employers and the Government jointly discussing and agreeing on proposed labour policies. The Committee asks the Government to provide information on any developments concerning the establishment of a tripartite consultation system and on any cooperation with employers’ and workers’ organizations concerning discrimination and equality in employment and occupation, including any training and awareness-raising activities undertaken or envisaged.

Enforcement. Recalling the essential role of labour inspectors in detecting and addressing discrimination, including harassment, in employment and occupation, the Committee asks the Government to provide information on their enforcement and guidance activities in this respect. It further asks the Government to provide information on the number, nature and outcome of discrimination cases dealt with by the courts.