Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Jamaica (Ratification: 1975)

Article 1(1) of the Convention. Protection of workers against discrimination. Legislation. The Committee previously recalled that, although the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, recognizes the right to freedom from discrimination on the seven grounds set out in Article 1(1)(a) of the Convention, constitutional provisions addressing non-discrimination have generally not proven to be sufficient to address specific cases of discrimination in employment and occupation. The Committee notes the Government’s indication, in its report, that section 4(2)(b) of the Labour Relations and Industrial Disputes (LRID) Act 1975, provides that “any person who dismisses, penalizes or otherwise discriminates against a worker by reason of him exercising of such right, shall be guilty of an offence and should be liable on summary convention before a Resident Magistrate to a fine not exceeding $500,000.” The Committee also notes that one of the objectives of the Occupational Safety and Health (OSH) Bill is “protecting workers and other persons in the workplace from discrimination” (section 3(1)(i)). It welcomes the definition of “discrimination” in section 4(1) of the Bill as “any distinction, exclusion or preference pertaining to an occupational safety and health measure which has the effect of nullifying or impairing equality of opportunity or treatment in access to training, job promotion, job processes, security of tenure, remuneration, leave entitlements, rest periods, social security and other benefits and conditions of work”. While taking note of the general prohibition on discrimination in the LRID Act, and the general protection against discrimination and the definition of “discrimination” with respect to OSH measures in the OSH Bill, the Committee recalls 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. It further points out that, while the Convention does not impose a strict obligation to legislate in all of the areas covered, it does require the State to review whether legislation is needed. The necessity of legislative measures to give effect to the Convention must be assessed within the framework of the national policy as a whole, having regard in particular to the other types of measures which may have been taken, and to the effectiveness of the overall action pursued, including whether there are adequate and effective means of redress and remedies (see General Survey of 2012 on the fundamental Conventions, paragraphs 735 and 743). With a view to ensuring the effectiveness of the right to non-discrimination in employment and occupation and enabling the persons concerned to avail themselves of such right, the Committee asks the Government to consider the need for specific legislative provisions : (i) defining and prohibiting direct and indirect discrimination based on at least all the grounds listed in Article 1(1)(a) of the Convention in all aspects of employment and occupation, not only in the field of OSH; and (ii) providing for complaint mechanisms, sanctions and remedies. The Government is asked to provide information on any measures taken in this regard and on the progress made in the adoption and enactment of the OSH Bill. In the meantime, the Committee asks the Government to provide information on the application in practice of Article 13(3)(g)–(i) of the Charter of Fundamental Rights and Freedoms and section 4(2)(b) of the Labour Relations and Industrial Disputes Act regarding employment and occupation, through judicial decisions, policy-making and awareness-raising.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication that the Bill making provision for the prevention of sexual harassment and for connected matters was tabled in the House of Representatives in July 2019 and has not been adopted yet. The Committee welcomes the Government’s indication that the Bureau of Gender Affairs (BGA) continues to provide training and awareness raising sessions on sexual harassment through training materials aimed at combating the gender stereotypes that contribute to sexual harassment in the workplace and educational institutions, and that the BGA also provides assistance to entities in creating workplace policies. The Committee notes that in February 2020 a Memorandum of Understanding (MoU) was signed to establish a partnership between the Government and the University of West Indies (UWI) Open Campus over the next three years to provide training and research on sexual harassment in the workplace and related matters. The Committee asks the Government to provide information on: (i) the progress made in the adoption and implementation of the draft policy to which it had referred in its previous report and the Bill on sexual harassment; and (ii) the specific steps taken to this end, such as awareness raising, training, the development of workplaces policies, the handling of complaints and the functioning of the sexual harassment division of the Industrial Disputes Tribunal.

Sexual orientation and gender identity. Noting that the Government has provided no reply to its previous request on the incidents of discrimination, harassment and violent attacks against lesbian, gay, bisexual and transgender persons to which the United Nations Human Rights Committee referred in its 2016 concluding observations, the Committee reiterates its request that the Government provide information on any steps taken or envisaged to address discrimination related to sexual orientation and gender identity in the context of employment and occupation.

Article 1(1)(b). HIV status. The Committee welcomes the provisions in the OSH Bill according to which “HIV-related discrimination” includes prejudice, negative attitude, abuse or maltreatment directed at persons who are living with or affected by HIV or AIDS” and discrimination against a worker on the basis of HIV status is prohibited. The Committee also welcomes the Government’s indication that the Jamaica Anti-Discrimination System (JADS) is the mechanism through which prospective cases of HIV-related discrimination and gender-based violence are reviewed and referred to the appropriate entities for assessment and redress where applicable. The Committee asks the Government to provide information on: (i) the progress made in the adoption and enactment of the Occupational Safety and Health Bill, and to transmit the text of the Bill once it has been adopted; and (ii) the measures taken to address real or perceived HIV and AIDS stigma and discrimination in the workplace, as well as on any cases brought to the JADS, in relation to discrimination on the grounds of real or perceived HIV/AIDS status in employment and occupation.

Persons with disabilities. With reference to its previous comment, the Committee notes the Government’s indication that it is still working to bring into effect the Disabilities Act 2014, and that, to this end, two codes of practice and regulations are being drafted. The Government states that, once enacted, the Act will establish the Disabilities Rights Tribunal, which will be responsible for enforcing the disabilities legislation, conducting investigations, and advising employers on how to secure equal acceptance of disabled employees in the workplace. The Disabilities Rights Tribunal will be able to issue sanctions and refer cases to the resident magistrate court. The Committee further notes, from the Government’s 2019 report on the application of the United Nations Convention on the Rights of Persons with Disabilities, that the Social and Economic Inclusion of Persons with Disabilities Project 2013–2017 was extended to 2018 and allowed for over 540 young people with disabilities to receive training (CRPD/C/JAM/1/Rev.1, 28 March 2019, paragraph 37). The Committee also notes that, in 2017, in an effort to increase equal access to education, the Jamaica Council for Persons with Disabilities offered five Margaret Moody Scholarships to young persons with disabilities to allow them to enter tertiary institutions to obtain an undergraduate diploma (paragraph 40). Finally, the Government indicated that, through the National Policy for Persons with Disabilities, a minimum of 5 per cent of all jobs in the public sector is to be reserved for persons with disabilities (paragraph 166). While welcoming this information, the Committee hopes that the Government will step up its effort to ensure that the Disabilities Act comes into effect in the near future and asks it to provide information on the implementation of the Act, in particular of Part VI which deals with employment of persons with disabilities. The Committee asks the Government to provide detailed information on: (i) the functioning of both the Jamaica Council for Persons with Disabilities and the Disabilities Rights Tribunal; (ii) any awareness-raising, training, employment promotion and policy making activities related to the application of the Convention to persons with disabilities. Noting the lack of information provided in this regard, the Committee further asks the Government to provide disaggregated statistical data on the representation of persons with disabilities in training programmes and in employment in the public and private sectors.

Articles 2 and 3. National equality policy. With reference to its previous comments on the activities of the Gender Advisory Committee (GAC), Bureau of Gender Affairs (BGA) or the Ministry of Labour and Social Security, the Committee notes the Government’s statement that, under the National Policy on Gender Equality (NPGE), public sector boards must have a minimum of 30 per cent of females as members. The Committee notes that the Government is participating in the “Win-Win: Gender Equality means Good Business” Programme which is being implemented in Latin America and the Caribbean and aims at promoting gender equality in the private sector. The Government further indicates that 16 private sector companies have committed to support the Women’s Empowerment Principles (WEPs), which aim at allowing the full and equal participation of women in society and focus on strengthening the leadership of women in business, reducing the gender pay gap, decent jobs, entrepreneurship, autonomy and economic empowerment. The Committee also notes, from the Government’s 2020 report on the application of the United Nations Convention on the Elimination of Discrimination Against Women, that the BGA is facilitating awareness-raising in schools on a range of gender-specific issues such as gender equality, female empowerment, and gender-based violence in educational institutions and in the wider society (CEDAW/C/JAM/8, 5 March 2020, paragraph 47). Welcoming this information, the Committee asks the Government to provide further information on the implementation of the National Policy on Gender Equality, the “Win-Win: Gender Equality means Good Business” Programme and the WEPs, and on the concrete results achieved with respect to the employment of women. It also asks the Government to provide further information on any action taken by the GAC, or the Ministry of Labour and Social Security to: (i) increase employment opportunities for women; (ii) increase the representation of women in decision-making positions; (iii) address occupational segregation; and (iv) improve conditions of work and the reconciliation of work and family responsibilities in the private sector and the public service. Noting that the Government has not provided any information in this regard, the Committee once again asks it to provide information on the steps taken towards the adoption and implementation of a national policy to promote equality in employment and occupation on the other grounds set out in the Convention, namely race, colour, religion, political opinion, national extraction and social origin.

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.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee takes notes of the Government’s indication that there have been no reported cases of termination of employment on the basis of the security of the State. The Committee asks the Government to continue to provide information on the impact of the application of the Terrorism Prevention Act in the fields of employment and occupation.

Statistics. The Committee notes the statistical data provided by the Government. It notes that women’s unemployment rates have decreased between 2015 and 2019, but that they remain higher than the unemployment rates of men. The Committee asks the Government to continue providing up-to-date statistical information on the labour force and other surveys on the participation of men and women in the labour market, if possible disaggregated by sector of the economy.