Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Eswatini (Ratification: 1981)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes with interest the adoption of the Sexual Offenses and Domestic Violence (SODV) Act No. 15 of 2018 which entered into force on 1 August 2018, which aims to address gender-based violence and to protect against sexual harassment with penalties of a fine up to 25,000 eSwatini lilangeni (SZL) (US$1,800) or ten years’ imprisonment or both. It further notes the Government’s indication that a policy on sexual harassment at the workplace is being developed, as a result of the 2010 National Gender Policy (NGP), but that due to resource constraints it has not yet been finalized. The Committee notes that, in its 2017 concluding observations, the United Nations Human Rights Council (UNHRC) expressed concern at reports of widespread violence against women and at the fact that relevant officials lack specific training on gender-based violence and recommended that the Government ensure that all cases of sexual and gender-based violence are thoroughly investigated, that perpetrators are prosecuted and, if convicted, are punished with appropriate sanctions, and that victims receive full reparation (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 26). The Committee hopes that the SODV Act will have a positive impact in fighting against sexual harassment in the workplace. The Committee asks the Government to provide information on: (i) any measures taken, following the adoption of the SODV Act to prevent and address all forms of sexual harassment (quid pro quo and hostile working environment sexual harassment) in education institutions and at workplaces, including in the informal economy, and to increase public awareness regarding sexual harassment, as well as the procedures and mechanisms available for an aggrieved party to seek redress, including in the framework of the 2010 NGP or otherwise; and (ii) the number of complaints concerning cases of sexual harassment lodged, penalties imposed and compensation awarded.

Article 1(1)(b). Discrimination based on additional grounds. Disability. The Committee welcomes the adoption of the Persons with Disabilities Act No. 16 of 2018, entered into force on 1 August 2018, which protects the rights of persons with disabilities, including their access to education and employment. Noting that according to the last available census (2011), 83.7 per cent of persons with disabilities were economically inactive, it welcomes the fact that the National Disability Plan of Action (NDPA) for 2015–20 set as a specific objective to ensure equal participation in the economic development of persons with disabilities through vocational training and skills development and access to the labour market. The Committee asks the Government to provide information on the application of the Persons with Disabilities Act in practice. It further asks the Government to provide information on the measures taken to promote vocational training and education, as well as employment of persons with disabilities, including in the framework of the NDPA for 2015–20 or otherwise, and the results achieved. The Committee asks the Government to provide updated statistical information on the employment rate of workers with disabilities, disaggregated by sex.

Articles 2 and 3. Public service. The Committee notes the adoption on 22 February 2018 of the new Public Service Act No. 5/2018, and more particularly of section 4 which provides that the administration and operation of the public service shall be governed by the public service values, which are attached to the main Act and include: “to be a non-discriminatory employer, that makes employment decisions on the basis of merit and recognizes the aims and aspirations of its employees, regardless of gender, marital status, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age, disability or HIV and AIDS status” (subparagraph (f) of the first schedule). The Committee however observes that no explicit reference is made to discrimination in the sections of the main Act that deal with appointment, mobility or termination of employment of public officers. It further notes that, in its last concluding observations, the UNHRC expressed concern at the lack of equal representation of women in the public sector, particularly in decision-making positions (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 24). The Committee asks the Government to provide information on the application of section 4 of the Public Service Act No. 5/2018, in practice, as well as on any activities undertaken to raise awareness of this provision, and on any case of discrimination, direct or indirect, in the public sector brought before the competent authorities. It further asks the Government to provide information on any steps taken to promote equal employment opportunities in the public service and their impact, including by providing updated statistical information on the number of public officers, disaggregated by sex, category and position.

Equality of opportunity and treatment between women and men. The Committee notes the Government’s indication that several policy measures have been adopted to promote gender equality and afford women increased opportunities, in particular in the framework of the Poverty Reduction Strategy and Action Plan (PRSAP) of 2006, as well as the draft Strategy for Sustainable Development and Inclusive Growth of 2016. The Committee notes that the 2010 National Gender Policy (NGP) acknowledges that the society is characterized by inequality between women and men in different areas mainly as a result of cultural practices, and sets as objectives: (i) to ensure that girls and boys have equitable access to education; (ii) to prevent and eliminate practices that contribute to early dropout from school, especially for girls mainly as a result of teenage pregnancy; (iii) to provide the same training opportunities for men and women; (iv) to ensure that women and girls have equitable opportunities and access to, and control over, productive resources such as land and credit, and opportunities for self-employment; and (v) to promote the full participation of women in all socio-economic activities. It notes that the NGP also provides for commitments to sensitize communities on gender issues that may inhibit women from occupying leadership positions, with the objective of increasing women’s participation in decision-making positions. The Government adds that some measures have been elaborated in this framework but that due to resource constraints they are still at their early stages. The Committee notes that, according to the United Nations Development Programme (UNDP), in 2017, the participation rate of women in the labour market remained substantially lower than that of men (42.7 per cent compared to 67.2 per cent, respectively) with a gender inequality index value of 0.569, ranking Eswatini 141 out of 160 countries. The Committee notes with concern that according to the Labour Force Survey (LFS) 2013–14 forwarded by the Government, 54.7 per cent of women are concentrated in the three lowest paid occupational categories, while only 3.4 per cent of them are employed in management positions. The LFS also indicates that gender occupational segregation is evident from the value of 0.25 for Duncan’s Index of dissimilarity, and that the majority of women are unemployed or employed in the informal economy. The Committee further notes that in its 2017 concluding observations, the Human Rights Committee (HRC) expressed concern about domestic and customary laws as well as cultural practices which perpetuate inequality between men and women, as well as at the lack of equal representation of women in the public and private sectors, particularly in decision-making positions (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 24). In light of the lack of legislation that fully reflects the principles of the Convention, the Committee urges the Government to strengthen its efforts to take proactive measures, including in collaboration with employers’ and workers’ organizations, to raise awareness, to monitor, and to promote and enforce the application of the Convention. While noting the resource constraints, it asks the Government to take measures to improve equality of opportunity and treatment between men and women in employment and occupation by effectively enhancing women’s economic empowerment and access to decision-making positions, as well as by encouraging girls and women to choose non-traditional fields of study and professions while reducing early dropout from school for girls. The Committee asks the Government to provide information on the specific measures effectively implemented to this end, including in the framework of the National Gender Policy and the Poverty Reduction Strategy and Action Plan, as well as through the adoption and implementation of the draft Strategy for Sustainable Development and Inclusive Growth. It asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.

General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government's attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Equality of opportunity and treatment irrespective of HIV status. In its previous comments, the Committee requested the Government to provide information on the measures taken to mandate labour inspectors to promote the establishment of workplace-wellness policies, as well as information on the follow-up to the pilot inspection. The Committee notes the Government’s statement, in its report, that when conducting inspections, labour inspectors are required to inquire on whether the inspected workplace has incorporated a workplace wellness policy for its employees and, if necessary, advice and assist employers to this end. The Government adds that other employees’ wellness programmes are also implemented, in particular in the public sector. The Committee notes the adoption of the new National Multi-Sectoral Strategic Framework for HIV and AIDS (NSF) 2018–23, which aims in particular to address HIV related stigma and discrimination. It notes in its last concluding observations that the UNHRC remained concerned at the persistence of stigma and discrimination against persons living with HIV and AIDS, as well at the absence of laws prohibiting discrimination against such persons (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 20). Noting the Government’s statement that section 16 of the Employment Bill would prohibit discrimination “against real or perceived HIV/AIDS status”, the Committee reiterates its request that the Government provide information on the progress of this Bill and to provide information on any new legislation adopted. It asks the Government to provide information on the steps taken to address HIV related discrimination in employment and occupation, including in the framework of workplace-wellness policies and the NSF 2018–23, as well as on their impact.

Enforcement. The Committee notes the Government’s indication that, between 2010 and 2015, no case of discrimination was reported to the Conciliation, Mediation and Arbitration Commission (CMAC). It notes, however, that during this period, according to the information provided by the Government, among the cases received by the CMAC, more than 60 per cent referred to unfair dismissal, more than 10 per cent referred to unfair terms and conditions of employment and more than 5 per cent referred to unpaid wages, which are cases that could relate to discrimination in employment and occupation. Recalling that no society is free from discrimination and that constant efforts are needed to take action against it, the Committee wishes to stress that where no cases or complaints are being lodged, this may 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 General Survey on the fundamental Conventions, 2012, paragraph 870). Consequently, the Committee asks the Government to take appropriate measures to raise public awareness on the provisions of the Convention, as well as on the procedures and remedies available, and provide information on any activities undertaken to this end. It further asks the Government to provide detailed information on any cases referred to the Conciliation, Mediation and Arbitration Commission, including complaints concerning discrimination, detected by or reported to labour inspectors, the CMAC, the courts or any other competent authorities, as well as any decision issued in this regard, disaggregated by the sex of the victims.