Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Argentina (Ratification: 1968)

The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT RA), received on 31 August 2018, in which the CGT RA: notes the need for a national public policy covering all the grounds of discrimination set out in the Convention; refers to the working conditions of migrant workers, particularly women migrants engaged in domestic service and the textile sector; hopes to receive further information on the employment programmes implemented by the Ministry of Labour, Employment and Social Security (MTEySS) in order to monitor those programmes with a view to ensuring that there is no discrimination against, for example, the migrant population and indigenous peoples; and notes the possibility of improving the legislation in force applicable to migrant workers in an irregular situation.

The Committee also notes the observations of the Confederation of Workers of Argentina (CTA Autonomous), received on 1 September 2018, indicating that: (i) although the right to not suffer discrimination and receive equal treatment is enshrined in the national legal system, practice shows that this is not sufficient and, consequently, adequate supervisory measures and mechanisms are needed to ensure effective compliance with legislation and guarantee the right to equality of persons with disabilities, women and the most vulnerable groups, in particular with respect to access to employment and more senior posts, and equal remuneration; (ii) affirmative action measures are needed to guarantee the genuine enjoyment of rights; (iii) the austerity measures adopted by the Government have directly and indirectly affected workers with disabilities, 90 per cent of whom are unemployed, and there is a lack of vocational training and the necessary support to allow persons with disabilities to enter the labour market; and (iv) gender equality has not been achieved in enterprises and the country’s gender equity model should cover areas such as employee selection, promotion and training, vocational development, the reconciliation of work and family life, sexual harassment and the working environment.

The Committee also notes the observations of the Confederation of Workers of Argentina (CTA Workers), received on 11 September 2018.

The Committee requests the Government to provide its comments on the observations made by the trade unions.

Legislation. The Committee notes that the Government refers in its report to the draft Gender Equality Bill (INLEG-2018-10434057-APN-PTE), which was submitted to Congress in March 2018. The Committee notes that this Bill is designed to amend the Employment Contracts Act and, more specifically, sections 172, 173, 175 and 176 on gender equity and equality of opportunity, providing, among others, that: (i) gender equity and equality of opportunity shall be guaranteed in all aspects of working life (section 172); and (ii) workers, regardless of gender, may opt to perform work assigned by their employer outside the workplace, and may provide services via telework or distance work (section 175). The Committee also notes that the draft Bill provides for the development of codes of conduct for employers or their adhesion to a code of conduct with a view to guaranteeing gender equality within the enterprise (section 2); provides that trade unions shall adopt statutory rules to guarantee respect for gender equality within their organizations (section 3); and provides that the parties to collective labour agreements shall adopt the relevant clauses to guarantee gender equality and the application of these agreements (section 4). The Committee welcomes this legislative initiative and requests the Government to report any developments in this respect.

Regarding the provisions on equal remuneration and the reconciliation of work and private and family life, the Committee refers to its comments on the application of the Equal Remuneration Convention, 1951 (No. 100), and the Workers with Family Responsibilities Convention, 1981 (No. 156).

Article 1 of the Convention. Protection against discrimination. In its previous observation, the Committee requested the Government to continue providing information on the implementation in practice of the measures taken pursuant to general Recommendation No. 6 of 2009 (promotion of equal treatment in access to employment without discrimination based on age, physical appearance, social origin, nationality and disability) of the National Institute to Combat Discrimination, Xenophobia and Racism (INADI), aimed at promoting equal treatment in access to employment. The Committee also requested the Government: (i) to provide information on the application in practice of the new section 73 of the Employment Contract Act which, following the adoption of Act No. 26.911 of 13 December 2013, prohibits the employer “at the time of recruitment, during the contract or with a view to the termination thereof, to conduct any kind of inquiry, research or investigation into the political, religious, trade union or cultural views or sexual orientation of the worker”, and on any complaints concerning the application of the Convention; and (ii) to indicate which specific measures have been adopted with a view to guaranteeing adequate protection against discrimination on all the grounds provided for in the Convention, in relation to access to employment, during the employment and upon its termination.

The Committee notes the Government’s indication that INADI plans to produce a report on discrimination in access to employment with the aim of updating general Recommendation No. 6 of 2009 and is continuing to conduct training and awareness-raising activities for members of the business, trade union and public sectors. Regarding complaints presented in relation to section 73 of the Employment Contracts Act, the Committee notes the Government’s indication that 207 and 153 complaints were received regarding cases of discrimination on the grounds of ethnicity, religion, sexual orientation and nationality, inter alia, in 2016 and 2017, respectively. The Government also reports that INADI has issued several non-binding opinions, in which it expressed its views on whether there had been discriminatory behaviour and, where necessary, made the relevant recommendations, in addition to proposing its good offices or conciliation, resolving 96 cases between 2016 and 2017. The Committee requests the Government to continue providing information on the specific measures adopted with a view to guaranteeing adequate protection against discrimination on all the grounds set out in the Convention and on the complaints received and their outcome. The Committee also requests the Government to provide information on the results of the study into discrimination in access to employment conducted by INADI and any follow-up actions taken and their outcomes.

Article 2. National equality policy. In its previous observation, the Committee requested the Government: (i) to provide information on any developments concerning the adoption of a national equality policy covering at least all the grounds of discrimination set out in the Convention in addition to other criteria established in the national legislation, such as disability; (ii) to provide information, pursuant to Article 3(f) of the Convention, on the specific measures taken to implement the principle of equality and non-discrimination in employment and occupation; (iii) to continue providing information on the action taken by INADI in response to complaints of discrimination in employment, disaggregated by grounds of discrimination, including any penalties imposed and compensation awarded; and (iv) to provide information on the implementation in practice of Ministerial Decision No. 270/2015, which prohibits HIV testing in the pre-employment examination. The Committee notes the Government’s indication that INADI is preparing a publication to raise the awareness of the population of the barriers faced by persons with HIV in accessing the world of work and is developing training programmes with networks of enterprises regarding the prohibition on conducting pre-employment HIV testing. The Committee recalls that, while the relative importance of the issues related to each of the prohibited grounds of discrimination set out in the Convention may vary from one country to another, when examining the situation and deciding the measures to be adopted, it is essential to take into account all the grounds in the application of the national policy. The Committee once again requests the Government to provide information on any developments concerning the adoption of a national equality policy covering at least all the grounds of discrimination set out in the Convention in addition to other criteria established in the national legislation, such as disability. The Committee also requests the Government to evaluate the results achieved through the application of the national equality policy and to provide information in that respect. Please also continue providing information on the implementation in practice of Ministerial Decision No. 270/2015, which prohibits HIV testing in the pre-employment examination.

Indigenous peoples. The Committee recalls that in its previous observation it referred to the signature on 19 November 2013 of a framework cooperation agreement between the MTEySS and INADI, the goal of which is to ensure and promote the right to equal opportunity and treatment in access to employment and to establish cooperation mechanisms to remove discrimination on various grounds, especially towards indigenous peoples. The Government also reports on the adoption by INADI and the Secretariat of Employment of the “Safeguarding indigenous peoples” initiative, the objective of which is to raise the awareness of officials in employment offices and vocational training institutions regarding non-discrimination towards indigenous peoples in access to employment and training. The Committee therefore requested the Government: (i) to provide information on the results achieved through these measures and to continue taking steps to increase the vocational training and guidance opportunities for indigenous peoples and to promote their access to employment and occupation on an equal footing with other workers; and (ii) to provide statistical information, disaggregated by sex, on the participation of indigenous workers in the labour market. The Committee notes the Government’s indication that INADI participated in the Inter-ministerial Roundtable for Indigenous Peoples (MIMPI), through which action lines were proposed to enhance the inclusion of indigenous men and women in state public policies. The Government also indicates that various information materials have been published on the rights of indigenous peoples in order to raise awareness and eradicate structural discrimination against them. The Committee also notes the Government’s indication of complaints related to the discrimination suffered by indigenous men and women and notes that, in 2016 and 2017, respectively two and ten complaints from indigenous persons were received. The Committee recalls that, where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (see 2012 General Survey on the fundamental Conventions, paragraph 870).

The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern about the persistent structural discrimination against indigenous peoples; the difficulties faced by members of indigenous peoples in gaining access to the formal labour market and their concentration in work that does not allow them to gain access to fundamental labour rights (CERD/C/ARG/CO/21-23, 11 January 2017, paragraphs 6 and 31). The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at the fact that indigenous women face intersecting forms of discrimination in the country, based on their ethnic origin and social status, in addition to racial hatred, violence, poverty and marginalization (CEDAW/C/ARG/CO/7, 25 November 2016, paragraph 40). The Committee requests the Government to continue taking proactive measures with a view to guaranteeing equality of opportunity and treatment in employment and occupation for indigenous men and women, including measures designed to guarantee their access to the material goods and services necessary to take up an occupation on an equal footing with other sectors of the population, and to provide information on their impact on the application of the Convention and any obstacles encountered. The Committee also requests the Government to provide statistical information on the participation of indigenous workers in the labour market, disaggregated by sex. The Committee also requests the Government to provide information on any measures adopted or envisaged with a view to examining whether the existing substantive provisions and procedures allow in practice indigenous peoples and their members to lodge and proceed with complaints and on the obstacles and difficulties encountered, and requests the Government to continue providing information on the number of complaints of discrimination lodged, their nature and outcome.

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