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

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

Articles 1 and 2 of the Convention. Legislative developments. The Committee notes with interest that the Law on Gender Equality of 2007 was amended in 2015 in order to harmonize its definition of discrimination based on sex (sections 4, 7(5) and 7(6)) with the Law on the Prohibition of Discrimination of 2014 and the European Union acquis communautaire. The amendments explicitly define pregnancy and maternity discrimination and harassment based on sex as forms of sex discrimination (section 4); expand the scope of the prohibition of discrimination by defining gender equality for the first time as equal participation of women and men as well as persons of different gender identities (section 2); and provide for the application of the Law on Gender Equality in the private sector; and expand the scope of sanctions for gender-based discrimination. The Law on the Prohibition of Discrimination of 2010 was amended in 2014 to expand its scope to the “promotion of equality” and enhance protection in cases of discrimination by establishing that complaints relating to discriminatory treatment are within the competency of the Protector of Human Rights and Freedoms (section 21). Furthermore, the Committee notes that further amendments were made in 2017 to section 16 of the Law on the Prohibition of Discrimination of 2010, which regulates discrimination in the field of labour. The amendments also inserted provisions to protect against discrimination based on gender identity, sexual orientation and intersexual characteristics. The Committee asks the Government to continue providing information on the application in practice of the Law on Gender Equality of 2007, as amended in 2015. It also asks the Government to provide information on the application in practice of section 16 of the Law on the Prohibition of Discrimination of 2010, as amended in 2017.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. In its previous comments, the Committee requested the Government to revise the Law on Prohibition of Discrimination of 2010 with a view to defining sexual harassment. The Committee notes with interest that, further to the amendments in 2014 and 2017, the Law on the Prohibition of Discrimination of 2010 prohibits and defines sexual harassment by providing that discrimination shall include any unwanted verbal, non-verbal or physical behaviour of a sexual nature which has the purpose of violating the dignity of a person or group of persons, or which has that effect, in particular when such behaviour causes intimidation or creates a hostile, humiliating, intimidating, degrading or offensive environment (section 7(2)). Recalling that, in addition to the Law on the Prohibition of Discrimination of 2010, as amended in 2017, the Law on Gender Equality of 2007 (section 7(8)) and the Labour Act of 2008 (section 8(3)) also provide definitions of sexual harassment, the Committee asks the Government to examine the possibility of harmonizing these definitions so as to ensure that they cover quid pro quo and hostile working environment sexual harassment. The Committee asks the Government to identify any steps taken at the national level to prevent and address sexual harassment at work, including any awareness-raising activities, and to provide information on any cooperation with workers’ and employers’ organizations in this regard. It also asks the Government to provide statistics on the number and nature of cases brought to the attention of the competent authorities relating to sexual harassment, and their outcome.

Article 1(2). Inherent requirements of the job. In its previous request, the Committee recalled that section 2 of the Law on the Prohibition of Discrimination of 2010 allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the act, action, or omission are objectively and reasonably justified by a legitimate purpose. The Committee also noted that, pursuant to section 16, which prohibits discrimination in employment, exceptions were 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, if the purpose to be achieved is justified. The Committee notes from the Government’s report that the 2014 amendments to the Law removed such exceptions only with regard to the prohibition of direct discrimination, and that section 16 was amended to require an additional element if the exception is to apply, namely that “the condition is proportionate”. Noting that the 2017 amendments to the Law did not make any substantive changes to these exceptions, the Committee wishes to recall 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 that 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 once again asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2(3) and 16 of the Law on the Prohibition of Discrimination of 2010, as amended, including examples of cases in which these exceptions have been used.

Article 2. Equality of opportunity for men and women. The Committee observes that the new Plan of Action for Gender Equality 2017–21 (APAGE) sets clear goals for the integration of gender equality in all national and local policies. It also notes that the Strategy for the Development of Women’s Entrepreneurship was adopted in 2015. The Committee notes that various measures have been implemented with a view to promoting gender equality legislation through numerous seminars, training, workshops and awareness raising campaigns aimed at removing cultural and social barriers and achieving gender equality as well as equal opportunities in employment. It also notes that, in addition to the Protector of Human Rights and Freedoms, the institutional framework for achieving gender equality is further supported by the new National Gender Equality Council, set up in October 2016. The 2015 amendments to the Law on Gender Equality reinforced protection by reassigning competence for matters and petitions in cases of gender-based discrimination from the Ministry for Human and Minority Rights to the Protector of Human Rights and Freedoms (section 6a). The Committee asks the Government to provide detailed information on the concrete steps taken within the framework of the Action Plan on Gender Equality (2017–21) and on the activities of the new National Gender Equality Council. It also asks the Government to provide information on the implementation of the Strategy for the Development of Women’s Entrepreneurship, and on the progress made.

Articles 2 and 3. Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes the Government’s indication that although some results in the application of the previous action plans (2008–12) and strategies (2008–12) for improving the position of Roma and the Egyptian community have been achieved, progress is very slow. According to the information provided, Roma and Egyptian populations account for 3–4 per cent of the unemployed in Montenegro. The Committee notes that, in 2016 the Government adopted a “Strategy for the social inclusion of Roma and Egyptians in Montenegro”, the first strategic document prepared with the involvement of Roma and Egyptian populations. The Strategy is based on the principles of equality and equal opportunities, non-discrimination and desegregation. It also defines employment as one of its key areas. It is expected that the effective implementation of the Strategy will significantly increase the level of inclusion of Roma and Egyptians by 2020. The Committee further notes that, in terms of non-discrimination legislation, the 2017 amendments to the Law on the Prohibition of Discrimination revise the definition of racial discrimination (section 17), emphasizing its prohibition, in particular, in the areas of labour, employment and vocational training. The Committee asks the Government to provide information on the measures formulated under the Strategy for social inclusion of Roma and Egyptians in Montenegro for the period 2016–20, including statistics and awareness-raising activities, as well as on the impact of such measures in the labour market for Roma and Egyptian men and women. It also asks the Government to provide information on the application in practice of section 17 of the Law on the Prohibition of Discrimination of 2010, as amended, including on any cases before the competent authorities involving the Roma and Egyptian populations.

Article 5. Special measures. The Committee acknowledges that the Government has provided the information requested relating to the application in practice of the Decree on subsidies for the employment of certain categories of unemployed persons of 26 January 2012.

Restrictions on women’s employment. The Committee recalls that section 104 of Labour Law No. 49/08 provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have a detrimental effect on and an increased risk for [her] health and life”. The Committee has been drawing the Government’s attention to the fact that this provision may give rise to violations of the principle of equality of opportunity and treatment. The Government indicates that section 104 of the Labour Law will be considered by the tripartite Working Group established for the revision of the Labour Law, which is envisaged under the Action Plan for negotiating Chapter 19 on Social Policy and scheduled for adoption in the last quarter of 2017. In the context of the ongoing legislative reform process, the Committee urges the Government to revise section 104 of Labour Law No. 49/08 with a view to ensuring that restrictions on women’s employment are limited to maternity in the strict sense and that provisions relating to the protection of persons working under hazardous or difficult conditions are aimed at protecting the health and safety of both men and women at work, and to provide information on the progress made in this regard.

Enforcement. The Committee notes the Government’s indication that since 2011 measures have been taken to reinforce the capacity of judges, prosecutors, labour inspectors and other relevant officials to identify and address discrimination cases. The Government also indicates that with regard to cases of discrimination in general, in 2015 the labour inspection registered four cases (three women and one man). The Committee asks the Government to continue providing information on the number and nature of complaints which relate specifically to discrimination based on the grounds set out in the national legislation, the sanctions imposed and the remedies provided.