Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Democratic Republic of the Congo (Ratification: 2001)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1(1)(b) of the Convention. Protection against discrimination. Real or perceived HIV status. Dismissal. Legislation. The Committee notes the Government’s general indication, in response to its previous comment, that the Inter-Enterprise Committee for Combating HIV/AIDS established since 2002 has the mandate to disseminate legislation and conduct awareness-raising and training for stakeholders in order to protect workers against all forms of discrimination, especially dismissal. It also notes that the Government reiterates that no cases of dismissal arising from real or perceived HIV status have been examined by the inspection services or the labour tribunals. The Committee requests the Government to provide detailed information on:

• (i)activities actually carried out by the Inter-Enterprise Committee for Combating HIV/AIDS with regard to non-discrimination, indicating the target groups concerned; and
• (ii)the measures taken to train labour inspectors and magistrates with regard to the issue of discrimination on the basis of real or perceived HIV status in employment and occupation.

Article 2. Gender equality.Access to education, vocational training and productive resources. The Committee notes that, according to detailed statistical information provided by the Government for the 2011–20 period, the school enrolment rate for girls is much lower than the rate for boys at all levels (including higher education), except for the pre-school level. In this regard, the Committee observes that the Government reports on the conduct of Plus de filles à l’école (more girls in school) awareness-raising campaigns and the adoption of the Strategic Education Plan. It also recalls that Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity explicitly provides for equal opportunities in education and training and establishes the obligation to implement specific programmes aimed in particular at: encouraging parity; providing guidance for girls in all branches of education; covering the cost of training and education for girls and boys from impoverished backgrounds; and ensuring that teenage mothers or mothers-to-be can continue their schooling. As regards women’s access to the management, administration, enjoyment and disposal of property, resources that ultimately have an impact on their access to employment and occupation, the Committee notes that the Government does not provide any information on this point. The Committee encourages the Government to intensify its efforts to adopt and implement measures to effectively promote the access of girls and women to education and vocational training, and requests it to provide detailed information on the results achieved and on the implementation of the provisions of Act No. 15/013 in this regard. The Committee once again requests the Government to provide information on the measures taken to encourage the access of women to the management, administration, enjoyment and disposal of property on an equal footing to men.

Access to employment and occupation. With regard to the low rate of employment of women in the non-agricultural sector and their very low participation in certain sectors, the Committee notes that the Government refers to the establishment of gender networks and focal points in the public administration and in public and private enterprises, and to the application of a quota in the recruitment of magistrates (500 women and 1,500 men). The Committee therefore once again requests the Government to:

• (i)take steps to improve the rate of employment of women and their access to employment and different occupations in the sectors where their participation is low; and
• (ii)provide recent statistical data, disaggregated by sex and sector of activity, on the employment of men and women in the public and private sectors, including in agriculture.

Article 5. Positive measures in favour of women’s employment. The Committee notes that the Government does not provide any information on the application of incentives for women’s employment as provided for in Act No. 15/013. The Committee therefore once again requests the Government to indicate the measures taken pursuant to the provisions of Act No. 15/013 aimed at promoting women’s employment, particularly under section 22 (employers’ measures aimed at rectifying existing inequalities and measures to reconcile work with family responsibilities) and to provide information on their impact on women’s employment.

Special protection measures for women. Restrictions on women’s employment. The Committee notes the Government’s indication that Order No. 68/13 of 17 May 1968 establishing the conditions of work of women and children has been replaced by Order No. 12/CAB.MIN/TPSI/045/08 of 8 August 2008 establishing the conditions of work of children, and that the conditions of work of women are consequently governed in the same way as those of men, namely by the Labour Code. However, the Committee notes that section 128 of the Labour Code, which provides that “Orders of the Ministry of Labour and Social Welfare, adopted further to the opinion of the National Labour Council, shall fix the conditions of work of women, (…) and shall in particular define the types of work which are prohibited for them”, has been neither repealed nor amended. The Committee requests the Government to take the necessary steps to amend or repeal section 128 of the Labour Code.

Enforcement. Civil service. The Committee welcomes the Government’s indication that each general secretariat in the public administration has a “gender unit” which records complaints relating to promotion, training, service missions, violence and harassment. The Government adds that persons who are reported are summoned in order to be given advice but that in most cases victims do not report the perpetrators of discrimination for fear of reprisals. Noting that the Government does not provide the information that was previously requested, the Committee once again requests the Government to provide information on:

• (i)the steps taken to raise awareness among public service employees of the procedures in place; and
• (ii)the use of these procedures in practice, particularly information on the number of cases of discrimination reported to the competent authorities or detected by them, and on the outcome of these procedures.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1 of the Convention. Protection of workers against discrimination. Legislation. Public and private sectors. With regard to the legal protection of private sector workers and public officials against discrimination, the Committee notes the Government’s indication that there are not yet any plans to incorporate the definition of direct and indirect discrimination in the Labour Code and in Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants. In order to expand the legal protection of workers in the public and private sectors against discrimination, the Committee requests the Government to take the necessary steps to ensure that an explicit definition of direct and indirect discrimination, based as a minimum on all of the grounds set out in the Convention and covering all aspects of employment and occupation, including recruitment, is incorporated in the Labour Code and in Act No. 16/013 issuing the staff regulations for state civil servants.

Article 1(1)(a). Discrimination on the basis of sex. Sexual harassment. The Committee notes that the Government does not provide any information in response to its request to incorporate provisions relating to hostile work environment sexual harassment in the legislation. The Committee therefore once again requests the Government to take steps as soon as possible to expand the legislation by incorporating provisions: (i) defining and prohibiting hostile work environment sexual harassment; and (ii) establishing preventive measures, mechanisms for handling complaints, and appropriate penalties. The Committee also requests the Government to provide information on the application in practice of the existing provisions of the Penal Code and the Ministerial Order of 2005, especially on the number of cases of sexual harassment handled by labour inspectors or the courts and the outcome thereof, and on any awareness-raising campaigns conducted or planned to combat all forms of sexual harassment, in collaboration with the social partners.

Articles 1(1)(a) and 3(d). Discrimination on the basis of sex. Leave in the civil service. Recalling the Government’s indication that the issue of section 30 of Act No. 16/013 – under which a woman public official who has taken maternity leave cannot claim her right to take “recreational leave” (paid annual leave) during the same year – was due to be discussed with the trade unions in a joint committee, the Committee notes the Government’s indications that: (1) section 30 has been formulated on a consensual basis by representatives of the Government and representatives of the most representative public service workers’ organizations; and (2) women public officials have not submitted any complaints. In this regard, the Committee wishes to emphasize that a restriction of this type constitutes discrimination on the basis of sex, since it amounts in practice to depriving women who have taken maternity leave from taking their paid annual leave during the same year. Recalling that the absence of complaints does not signify the absence of discrimination but may reflect the absence of an appropriate legal framework or of access to complaint mechanisms and remedial processes or even fear of reprisals, the Committee once again requests the Government to take the necessary steps to amend section 30 of Act No. 16/013 and bring it fully into line with the provisions of the Convention.

Discrimination on the basis of race or ethnic origin. Indigenous peoples. The Committee welcomes the Government’s indication that the Act to protect and promote the rights of indigenous pygmy peoples was adopted at first reading by the National Assembly on 7 April 2021 and that it will contribute to strengthening measures for the protection of indigenous peoples. The Committee notes that this Act was adopted at second reading by the Senate on 10 June 2022. In light of the above, the Committee trusts that the Act to protect and promote the rights of indigenous pygmy peoples will be promulgated and published in the Official Journal in the near future. It requests the Government to indicate the measures taken towards this end and to send a copy of the Act once it has been promulgated. The Committee also requests the Government to take practical steps to: (i) prevent and combat all forms of discrimination in employment and occupation, including with regard to pay, and combat prejudices and stereotypes to which indigenous pygmy peoples are exposed; and (ii) enable members of indigenous peoples to have access to all levels of education, vocational training and employment and to other resources which enable them to carry out their traditional and subsistence activities, including access to credit and land.

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

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

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous comment, the Committee had noted that the definitions of sexual harassment provided under the law (section 1 of Ministerial Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005, prohibiting sexual or moral harassment in the performance of a work contract, and section 174(d) of the Penal Code) did not cover sexual harassment resulting from a hostile work environment. The Committee notes the Government’s undertaking to amend the legislation to prohibit and penalize all forms of harassment. The Committee also notes the Government’s indications that: (1) awareness-raising campaigns on sexual harassment have been conducted; (2) a post of special adviser on sexual harassment to the Head of State has been created; and (3) the social partners are encouraged to include provisions against sexual harassment in collective labour agreements, and in the internal regulations of enterprises and trade union representations. The Committee requests the Government to: (i) take steps as soon as possible so that the legislation prohibits and penalizes all forms of sexual harassment, including harassment resulting from a hostile work environment; (ii) provide information on the application in practice of legal provisions against sexual harassment, such as information on the conditions of proof in cases of harassment, as well as on the number of cases of sexual harassment dealt with by the labour inspectorate or by the courts and the results of those procedures; (iii) supply information on the awareness-raising campaigns conducted in respect of sexual harassment; and (iv) provide copies of collective agreements and extracts of internal regulations of enterprises containing provisions against sexual harassment.

Article 1(1)(b). Protection against discrimination Dismissal. Legislation. Real or perceived HIV status. In its previous comment, the Committee had noted with interest the incorporation in the list of grounds of discrimination prohibited under section 62 of the Labour Code the “real or perceived HIV/AIDS status”, and had requested the Government to supply information on all cases of dismissal based on such grounds dealt with by the labour inspectorate or the courts. The Committee notes that, in its report, the Government indicates that neither the labour inspectorate not the courts have yet encountered this form of discrimination. The Committee requests the Government to provide information on: (i) the measures adopted to disseminate information on this form of discrimination and the remedies available to workers; (ii) the measures in place to train labour inspectors and judges in discrimination based on real or perceived HIV/AIDS status; and (iii) the impact of those measures, for example, the number of cases identified or brought to the attention of the labour inspectorate or before the courts, as well as the results of those processes.

Article 2. Gender equality. Access to education, vocational training and resources. In its previous comment, the Committee had taken note of the modifications made in 2015 to the Family Code in respect of the enjoyment and disposition of property, and the adoption of Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity in education and training. It had requested the Government to provide information on the application of these new measures in practice. The Committee notes the Government’s indication that awareness-raising campaigns are regularly conducted by the Ministry for Gender, the Family and Children and the Ministry of Primary and Secondary Education and Vocational Training, in collaboration with certain international institutions (such as the United Nations Children’s Fund, the United Nations Educational, Scientific and Cultural Organization and the United Nations Population Fund) to ensure gender equality for girls and boys in access to education and vocational training. It notes the Government’s indication that available statistics show that the number of girls having completed the primary school cycle is higher than that of boys, but it does not provide information on the specific steps taken to implement Act No. 15/013. The Committee requests the Government to provide: (i) detailed statistical information on the trends in access by girls and women to education and vocational training following the adoption of Act No. 15/013 and the recent amendments to the Family Code; and (ii) information on the specific steps taken to eliminate, as provided by the 2015 Act, all forms of discrimination against women in respect of access to the ownership, management, administration, enjoyment and disposition of property, which are resources that ultimately condition their access to employment and occupation.

National policy on gender equality. Access to employment and occupation. Further to its previous comment in which it noted the low rate of employment of women in the non-agricultural sector and their very low participation in certain sectors, the Committee notes that the Government does not communicate any information on measures adopted to promote equality of opportunity and treatment between men and women, at all stages of employment and occupation. The Committee requests the Government to: (i) take steps to improve the rate of employment of women and their access to work in the sectors where their participation is low; and (ii) provide recent statistical data, disaggregated by sex and by sector of activity, on the employment of men and of women in the public and private sector, including in the agricultural sector.

Article 5. Positive measures in favour of women’s employment. In its previous comment, the Committee had noted that Act No. 15/013 contains a certain number of incentives for the employment of women and had requested the Government to provide information on the application of those measures in practice and their impact on women’s access to employment. Noting that the Government has not supplied this information, the Committee reiterates its request.

Special protection measures for women. Restrictions to women’s employment. The Committee had noted that Order No. 68/13 of 17 May 1968 establishing the conditions of work of women and children contains provisions relating to the prohibition and restriction of night work for women and establishes the list of types of work prohibited to women. The Committee had reminded the Government that general measures to protect women based on stereotypical perceptions of women’s capabilities and their role in society are contrary to the Convention. The Committee notes the Government’s engagement to submit the question of amending Order No. 68/13 to the National Labour Council. The Committee requests the Government to provide information on any developments regarding the amendment of Order No. 68/13 and to consider all other measures that may be taken to ensure that women can work on an equal footing with men (for example, by ensuring protection of the safety and health of men and women, and by putting adequate means of transport and social services in place).

Enforcement. Civil service. The Committee had noted the introduction, through Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants, of new legal provisions against discrimination in the public service. It notes that in response to its request for information on the application of these provisions in practice, the Government indicates that there are no cases of discrimination in the public service. In that regard, the Committee recalls that where no cases or complaints of discrimination are being lodged, it may be due to a lack of awareness of rights, lack of confidence in, or difficulty in accessing, the remedial processes, or fear of reprisals (see General Survey of 2012 on the fundamental Conventions, paragraph 870). The Committee requests the Government to provide information: (i) on the steps taken to make known the procedures for denouncing cases of discrimination in the public service; and (ii) on the use of those procedures in practice (such as information on the number of cases of discrimination brought to or identified by the authorities, as well as the results obtained).

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

Articles 1 and 2 of the Convention. Protection of workers against discrimination on all grounds covered by the Convention in all aspects of employment and occupation. Legislation. Public and private sectors. In its previous comments, the Committee had noted that the provisions relating to discrimination included in Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants (hereinafter, Act No. 16/013), and the Labour Code (sections 62, 128 and 234), neither defined nor prohibited all the forms of discrimination in employment and occupation on the basis of all the grounds set out in the Convention. The Committee notes the Government’s indication in its report that the question of defining discrimination in the legislation will be placed before the National Labour Council for discussion. The Committee again requests the Government to take the necessary measures to ensure that a definition of direct and indirect discrimination, based as a minimum on all the grounds set out in the Convention and covering all aspects of employment and occupation, is included in the legislation applicable to the public and private sectors.

Article 1(1)(a) and 3(d). Discrimination based on sex. Leave in the civil service. The Committee notes with regret that, since 2007, it has been requesting the Government to take the necessary measures to modify section 30 of Act No. 16/013, under which women public officials who have taken maternity leave cannot claim their right to full paid annual leave during the same year. The Committee notes the Government’s indication that the issue will be discussed with the trade unions in a joint committee. The Committee requests the Government to indicate whether: (i) the question of the incompatibility of section 30 of Act No. 16/013 with the Convention has been discussed by the joint committee; and (ii) measures were adopted to modify the section.

Discrimination based on race or ethnic origin. Indigenous peoples. Having highlighted on numerous occasions the marginalization of indigenous “pygmy” peoples, the Committee requested the Government to take measures without delay to bring an end to the discrimination that they face in employment and occupation. The Committee notes that the Government has not provided information on possible measures adopted in this regard. The Government indicates, as it has in previous reports, that a Bill to promote and protect the rights of indigenous pygmy peoples is passing through Parliament. The Committee notes in that respect that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) recently observed that the Bill for the protection of indigenous peoples had been pending before Parliament since 2014 and that women members of the pygmy peoples continued to face multiple forms of discrimination (CEDAW/C/COD/CO/8, 6 August 2019, paragraph 44). The Committee once again requests the Government to take measures as quickly as possible to bring an end to discrimination against men and women workers belonging to the indigenous pygmy peoples. In more precise terms, the Committee requests the Government to take measures, such as training for labour inspectors and employers, the provision of education materials for the public and other awareness-raising measures to: (i) combat prejudices and stereotypes of which indigenous peoples are victims; (ii) combat discrimination relating to their working conditions (including remuneration); and (iii) allow indigenous peoples access to all levels of education and vocational training, employment and other resources which enable them to carry out their traditional and subsistence activities, including land. The Committee also requests the Government to provide information on any developments in respect of the Bill for the protection of indigenous peoples.

General observation of 2018. More generally, with regard to the points raised above, 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 it to provide information in response to the questions raised in that observation.

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

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

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Sexual harassment. The Committee recalls that the definitions of sexual harassment in Ministerial Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005, prohibiting sexual or moral harassment in the performance of a work contract, and in section 174(d) of Act No. 06/018 of 20 July 2006, amending and supplementing the Decree of 30 January 1940 issuing the Congolese Penal Code, do not cover all forms of sexual harassment. These definitions cover quid pro quo sexual harassment but do not encompass or penalize behaviour which results in the creation of an intimidating, hostile or humiliating work environment for a person, on account of words or acts of a sexual nature. The Committee notes the Government’s general indication in its report that the trade unions organize worker education in enterprises to raise workers’ awareness of their rights and obligations in the performance of their employment contracts. In order to prohibit and penalize all forms of sexual harassment in employment and occupation, the Committee asks the Government to add to the definitions of sexual harassment, as they appear in the Ministerial Order of 2005 and in the Penal Code, behaviour or remarks having sexual connotations which result in the creation of a hostile, intimidating or offensive working environment for a person. The Committee once again asks the Government to supply information on the application of these provisions in practice, with an indication of the applicable rules of evidence and of whether cases of sexual harassment have been dealt with by labour inspectors or the courts and, where applicable, their outcome. The Committee also asks the Government to take steps at the national level, such as awareness-raising campaigns and provision of information in the media, to combat sexual harassment, and to encourage enterprises to take steps to combat sexual harassment, particularly through internal company regulations.

Article 2. Gender equality. Access to education and vocational training. The Committee notes with interest that Act No. 15/013 of 1 August 2015, on the implementation of women’s rights and gender parity, explicitly prescribes equal opportunities in term of access to education and training and establishes the obligation for the Government to implement specific programmes: (i) to encourage parity between boys and girls in terms of schooling; (ii) to provide guidance for girls in relation to all branches of education; (iii) to significantly reduce the gender literacy gap; (iv) to cater for out-of-school children of both sexes through special programmes, apprenticeships and vocational training; (v) to cover the cost of training and education for girls and boys from underprivileged families; and (vi) to enable young mothers or mothers-to-be to continue their schooling. The Committee recalls the importance of providing girls and boys with equal access to education and training, by adopting specific measures to encourage girls to go to school or return to school so that they can broaden their occupational choices and in particular have access to jobs with career prospects, better remuneration and responsibilities. The Committee asks the Government to provide information on the measures adopted and implemented pursuant to Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity, in the fields of education and training, indicating their results in terms of schooling and vocational guidance for girls.

National policy on gender equality. The Committee recalls that in 2009 the Government adopted the national gender policy and in 2010 validated its action plan, which includes a comprehensive set of measures to promote equality between men and women within the family, the community and the economy, and in decision making. The Committee notes that, according to the detailed statistics provided by the Government, the rate of employment for women in the non-agricultural sector is approximately 17 per cent; in primary education approximately 28 per cent; in higher education approximately 8 per cent; in the judiciary approximately 19.5 per cent; in the armed forces approximately 2.1 per cent; in the police approximately 5.3 per cent; and in the Government approximately 14.5 per cent. The Committee welcomes the provisions of Act No. 15/013, which stipulate that “economic development policies and programmes must be formulated and implemented with account taken of gender parity and must ensure equal access for all to resources and resulting benefits” (section 7). The Act also provides that the right of women to engage in private enterprise is guaranteed by the State and the latter shall promote access to savings, credit, diversity of opportunities and new technologies without any gender discrimination (section 8). Moreover, the Committee notes that the United Nations (UN) Human Rights Committee, in its recent concluding observations, expressed concern at the low representation of women in political and public life, including at the highest levels of government and in the judicial system, and at the persistence of gender stereotypes and the application of rules of customary law that perpetuate discrimination and certain traditions that are harmful to women. The Human Rights Committee also called on the Government “to take steps to eliminate gender discrimination and, in particular, to take all necessary measures to increase women’s participation in public life, in particular their representation at the highest levels of government and in the judicial system” (CCPR/C/COD/CO/4, 30 November 2017, paragraphs 15 and 16). Referring to the paragraph of its observation concerning discrimination on the basis of sex and in view of the low rate of employment of women in the non-agricultural sector in general and their very low representation in certain sectors, the Committee asks the Government to provide detailed information on the measures adopted pursuant to Act No. 15/013 and otherwise, for example in context of the national gender policy and action plan, to promote equality of opportunity and treatment between men and women, at all stages of employment and occupation, including through access to resources. The Government is also asked to provide information on the impact of any such measures. In order to evaluate the results of equality policies and measures adopted by the Government, the Committee also asks that the Government continue to supply up-to-date statistical data, disaggregated by sex and by branch of activity, on the employment of men and women in both the public and private sectors, including agriculture.

Article 5. Positive measures in favour of women’s employment. Taking account of the statistical data on women’s employment referred to above, the Committee notes with satisfaction the provisions of Act No. 15/013 which provide for: (i) the possibility of adopting positive measures to rectify existing inequalities and ensure the implementation of gender parity (section 36); and (ii) the adoption by the State of incentives for the benefit of employers who recruit women to rectify existing inequalities and who adopt policies enabling a better work–life balance such as variable and flexible working hours, full or part-time employment, and other conditions of work and social security (section 22). The Committee also notes that measures must be taken to encourage access for women and for their promotion within the judiciary, the armed forces, the national police service and the security services (section 27), and to promote the participation of women in decision-making bodies in the private sector (section 7). The Committee asks the Government to identify the measures adopted pursuant to these provisions of Act No. 15/013, in particular incentives for employers recruiting women, and to provide information on the results achieved in terms of women’s access to employment and occupation, particularly within the judiciary, the armed forces, the national police service and the security services.

Special protection measures for women The Committee notes with interest the amendment to section 129 of the Labour Code, further to the adoption of Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 issuing the Labour Code, according to which any pregnant woman whose pregnancy results in health risks which have been duly certified by a doctor may suspend her employment contract without this constituting a resignation, as was also previously the case. She may also terminate her contract without giving notice and without entitlement to severance pay. The Committee observes that the opportunity to suspend the employment contract allows for a subsequent return to work. The Committee notes that the prohibition on night work for women was abolished through Act No. 16/010 (new section 125), in accordance with the principle of equal treatment for men and women. In this regard, the Committee notes the Government’s indication, in its report on the application of the Equal Remuneration Convention, 1951 (No. 100), that Order No. 68/13 of 17 May 1968 establishing the conditions of work of women and children is still in force. This Order contains provisions relating to the prohibition and restriction of night work for women (Chapter II) and establishes the list of types of work prohibited for women (Chapter III). The Committee recalls that in its 2012 General Survey (paragraphs 838–840), it emphasises the distinction to be drawn between special measures to protect maternity (in the strict sense), which come within the scope of Article 5 of the Convention, and measures based on stereotypical perceptions of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment. 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 account of gender differences with regard to specific risks to their health. As regards the restrictions applicable to work done by women, the Committee asks the Government to review the relevant provisions of the Order of 1968 in the light of the principle of gender equality and advances in technology, in order to ensure that any protective measures for women are strictly limited to the protection of maternity and do not exclude women from certain types of work or employment on the basis of stereotypes concerning their professional abilities and their role in society. In this regard, the Committee encourages the Government to consider what measures may be necessary to ensure that women can work on an equal footing to men, for example by improving health protection for men and women, providing adequate and safe transport facilities and establishing social services.

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

Articles 1 and 2 of the Convention. Protection of workers against discrimination on all grounds covered by the Convention in all aspects of employment and occupation. Legislation. Public and private sectors. As regards the civil service, the Committee notes with interest the introduction into Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants which repealed the previous law (Act No. 81/003 of 17 July 1981) of general provisions on discrimination, whereby “employees shall be able to perform without discrimination the jobs to which they are assigned” (section 19) and “there shall be no discrimination between candidates on grounds other than those specified or authorized by the legislation” (section 87). However, the Committee notes with regret that the Government has not taken the opportunity afforded by the adoption of Act No. 16/010 of 15 July 2016 (which amends and supplements Act No. 015-2002 that issues the Labour Code), to incorporate into the Code provisions defining and prohibiting any form of discrimination based as a minimum on all the grounds set out in the Convention and covering all aspects of employment and occupation, including recruitment. In this regard, it notes the Government’s indications that even though no new revision of the Labour Code is envisaged for the moment, it proposes to include the definition of direct and indirect discrimination in employment and occupation in national legislation, in conformity with the Convention. The Committee once again asks that the Government adopt the necessary measures in the near future to ensure that all direct or indirect discrimination, based as a minimum on all the grounds set forth in the Convention and covering all aspects of employment and occupation, is defined and explicitly prohibited by the Labour Code. The Committee asks the Government to provide information on any procedure established to deal with cases of discrimination against public employees or candidates for a post in the civil service and on any case of discrimination which has been reported and dealt with.

Article 1(1)(a). Discrimination based on sex. Legislation. In its previous comments, the Committee urged the Government to take the necessary steps to address the inferior position of women in society. With regard to the legislation, the Committee underlined the discriminatory nature of sections 448 and 497 of Act No. 87/010 of 1 August 1987 issuing the Family Code, and section 8(8) of Act No. 81/003 of 17 July 1981 issuing the staff regulations of state civil servants, under which a married woman is obliged to obtain permission from her husband in order to work. The Committee notes with satisfaction that: (i) further to the adoption of Act No. 008 of 15 July 2016 amending the Family Code, section 448 has been amended and now provides that “spouses must agree on all legal acts in which they assume an obligation to perform a certain task” and, according to the new section 449 “in the event of a persisting disagreement, the spouse who suffers prejudice can seize the tribunal”; and furthermore, section 497, on goods the woman has acquired through the exercise of a profession, has been repealed; and (ii) further to the adoption of Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants, section 8(8) of the former regulations has been repealed and consequently the husband’s permission is no longer required in order for a woman to take up work (section 5 of the new regulations).

Moreover, the Committee notes with interest the adoption of Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity, which aims, inter alia, to eliminate all forms of discrimination against women and to protect and promote their rights in all areas, inter alia, in the social, economic, political, administrative, cultural, judicial and safety-related spheres. The above-mentioned Act establishes the general legal framework enabling the adoption of specific measures to combat discrimination towards women and to promote gender equality. As regards discrimination, the Committee notes that the Act contains a definition of discrimination which reflects that in Article 1(1)(a) of the Convention. The Act also explicitly states that “discrimination between workers on the basis of sex, particularly on the grounds of marital status or family situation, or on the grounds of pregnancy is prohibited” (section 20). The Committee notes that “… the prohibition of all discrimination applies to any harmful practice connected in particular with recruitment, assignment of tasks, working conditions, remuneration and other social benefits, promotion and termination of the employment contract” (section 21). According to the Act, the State must take “steps to eliminate any practice that is harmful to the rights of women in respect of the ownership, management, administration, enjoyment and disposition of property” (section 9). It also provides that the State must take “appropriate measures to modify patterns and models relating to the socio-cultural behaviour of women and men, through education of the general public, in order to eliminate all harmful cultural practices and practices based on the notion of the inferiority or superiority of either sex or based on stereotypical assumptions concerning the roles of women and men” (section 24). Further, it prohibits all gender stereotypes or preconceptions at all levels of education, particularly in educational guidance and career choices (section 11). The Committee also notes that the United Nations Human Rights Committee, having emphasized the persistence of gender stereotyping in its recent concluding observation, asked the Government to take steps “to strengthen education and awareness-raising initiatives for the general public, including traditional leaders, to combat traditional practices that are discriminatory and harmful to women and to eliminate gender stereotypes on the subordination of women to men and on the respective roles and responsibilities of women and men in the family and society” (CCPR/C/COD/CO/4, 30 November 2017, paragraphs 15 and 16). Considering that all these legislative provisions constitute significant progress in combating discrimination against women in education, vocational training and guidance, employment and occupation, the Committee asks the Government to adopt specific measures giving effect to Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity, in order to eliminate all forms of discrimination, particularly measures aimed at eliminating all practices based on the notion of the inferiority or superiority of either sex, stereotypical notions on the roles of women and men, and gender stereotypes relating to education and educational guidance. The Government is also asked to provide detailed information on the steps envisaged to eliminate all practices that are harmful to women’s rights in relation to the ownership, management, administration, enjoyment and disposition of property, as provided for in the Act of 2015.

Discrimination based on sex. Leave in the civil service. The Committee notes with regret that the Government has not taken the opportunity afforded by the adoption of Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants (which repeals the former regulations issued by Act No. 81/003 of 17 July 1981) to amend section 25(2), under which female employees who have taken maternity leave cannot claim their right to full annual leave during the same year. It observes that section 30 of the new regulations reproduces section 25(2) of the former regulations in an identical form. The Committee asks the Government to take the necessary steps to amend section 30 of Act No. 16/013 of 15 July 2016 in order to abolish all discrimination on the basis of sex in respect of leave in the public service.

Discrimination based on race or ethnic origin. Indigenous peoples. For a number of years, the Committee has highlighted the marginalization and discrimination of indigenous “pygmy” peoples in relation to the enjoyment of their economic, social and cultural rights, particularly with regard to access to education, health and the labour market, and has urged the Government to take measures to guarantee equality of opportunity and treatment for indigenous peoples in employment and occupation. The Committee has in particular, referred to the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD). The Committee notes with regret that the Government indicates once again that indigenous peoples benefit from all the rights guaranteed by the Constitution and that it refers to the Forestry Code of 29 April 2002 (sections 36–44), which, the Government states, guarantees to indigenous peoples and local communities the right to benefit fully from their forest resources and from socio-economic infrastructures that may result, where applicable, from a forestry concession contract concluded between the State and a logging company. Furthermore, the Committee observes that the Government does not mention anymore the bill aiming at ensuring the protection of indigenous peoples, which, according to its previous report, was under examination by Parliament. It also notes that the UN Human Rights Committee (HRC) has expressed concern at: “(a) the overall situation of insecurity and vulnerability of pygmy communities; (b) reports that these communities are discriminated against, particularly in the areas of health care and education; and (c) the State party’s position that indigenous peoples are subsumed under the category of “local communities” in legislation, particularly in the Forestry Code”. The HRC has also expressed concern at the delay in adopting the law on the rights of indigenous peoples and deplored the serious human rights violations and forced displacement suffered by “pygmy” communities in the province of Tanganyika (CCPR/C/COD/CO/4, 30 November 2017, paragraphs 49 and 50). In its 2012 General Survey on the fundamental Conventions, the Committee indicates that it strongly encourages countries to assess the situation in employment and occupation of all ethnic groups in their country, in particular indigenous and tribal peoples, and in the discrimination faced by them, and to supply such information in their reports under article 22 of the Constitution (paragraph 772). It also recalls that a true policy of equality must also include measures to correct de facto inequalities of which certain categories of the population are victims and take into account their specific needs. The Committee therefore once again urges the Government to take measures without delay, including through legislation: (i) to combat prejudices and stereotypes of which indigenous peoples are victims and to raise other population groups’ awareness of their culture and way of life so as to promote equality of treatment and mutual tolerance; (ii) to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources, particularly land, which enable them to carry out their traditional and subsistence activities; and (iii) to ensure that members of indigenous peoples employed in agriculture are treated on an equal footing with other members of the population in terms of conditions of employment, including remuneration. The Committee asks the Government to indicate whether it still plans to adopt a law to protect indigenous peoples and, if so, to provide detailed information on the progress made in the legislative process and the contents of the bill.

Article 1(1)(b). Legislation. Protection against discrimination. Dismissal. Recalling that section 62 of the Labour Code prohibits any dismissal on the grounds of race, colour, sex, marital status, family responsibilities, pregnancy, childbirth and the post-natal period, religion, political views, national extraction, social origin or ethnic group, the Committee notes with interest the incorporation of “real or perceived HIV/AIDS status” into this list of prohibited grounds, following the adoption of Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 issuing the Labour Code. The Committee asks that the Government provide information on any cases of dismissal based on the aforementioned grounds that have been dealt with by the labour inspectorate or the courts.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes with regret that the Government’s report has not been received. Noting the adoption of Act No. 15/013 of 1 August 2015 on the rules for implementing women’s rights and gender parity, and of Act No. 16/008 of 15 July 2016 amending the Family Code, it hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the specific issues raised in relation to the Family Code, and other matters raised in its previous comments.

Repetition

Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes that section 174(a) of Act No. 06/018 of 20 July 2006, amending and supplementing the Decree of 30 January 1940 issuing the Congolese Penal Code regarding sexual harassment, establishes a sentence from one to 12 years penal servitude or a fine of 50,000 to 100,000 Congolese francs (CDF), or both, for those who have engaged in “persistent behaviour towards others, through words, actions, either by giving orders or making threats, or imposing constraints, either by means of severe pressure or abuse of a position of authority, with the objective of obtaining favours of a sexual nature”. While welcoming the adoption of penal provisions addressing sexual harassment, the Committee wishes to draw the Government’s attention to the fact that, in most cases, criminal prosecution is not sufficient to eliminate sexual harassment in view of its sensitive nature and the difficulty of providing proof, in particular if there are no witnesses, which is often the case. Moreover, the Committee notes that, in line with the definition in Ministerial Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual or moral harassment in the performance of a work contract, the definition of harassment in Act No. 06/018 of 20 July 2006 only covers behaviour of the nature of quid pro quo harassment and not behaviour which results in the creation of an intimidating, hostile or humiliating work environment for a person, whether or not this behaviour is intended to obtain sexual favours. Noting the Government’s indication that it will examine the possibility of revising the Order to respond to the Committee’s concerns, the Committee strongly encourages the Government to take the necessary measures to add to the definition of sexual harassment, as it appears in the Order of 2005 and in the Penal Code, behaviour which has the effect of creating a hostile, intimidating or offensive working environment for a person. The Committee requests the Government to supply information on the application of these provisions in practice, with an indication of the applicable rules of evidence and of whether cases of sexual harassment have been dealt with by labour inspectors or the courts and, where applicable, their outcome. Please also supply information on the measures taken at the national level, such as awareness campaigns, and at the business level, particularly in enterprise rules or collective agreements, to combat sexual harassment.

Maternity leave in the public service. The Government indicates that section 25(2) of Act No. 81/003 of 17 July 1981 issuing the conditions of service of career members of the state public service under which a female employee who has taken maternity leave can no longer during the same year, assert her right to full annual leave, has been amended in the draft of the new conditions of service. However, noting that the new conditions of service of employees in the public administration has still not been adopted, the Committee trusts that it will be adopted in the near future in order to abolish all discrimination based on sex in respect of leave in the public service.

Article 2. National policy to promote gender equality. The Committee notes the measures taken by the Government to promote equality of opportunity and treatment between men and women, in particular the adoption of the National Gender Policy in 2009 and its plan of action, the establishment of focal points and gender networks in administrations and private businesses, awareness campaigns on the education of girls and the quotas established for the recruitment of judges (25 per cent of women). With regard to the “National Gender Policy”, the Committee notes that it draws up an assessment of inequalities between men and women in numerous fields and that its main objective is to “establish an institutional, socio-cultural, legal and economic environment conducive to gender equity and equality of access of men and women, boys and girls to the resources of society”. The Committee observes that the Policy is accompanied by a National Plan of Action, which was validated in 2010, and which includes a very complete series of measures to promote equality between men and women in the family, the community, the economy and in decision making. The Committee requests the Government to supply detailed information on the implementation of the National Gender Policy and its plan of action, and particularly on the application of measures to strengthen the participation of women in all fields, including education and vocational training, and their access to means of production and economic opportunities, as well as the action taken to combat prejudices and stereotypes regarding the roles of men and women in work and, more generally, in society. The Committee also requests the Government to supply information on any evaluation of the measures implemented and the results obtained. The Committee once again requests the Government to supply statistics or other information on the participation of men and women in employment in the public and private sectors and the informal economy, including the proportion of women in positions of responsibility.

Article 5. Special measures of protection for women. The Committee notes that the Government intends to take measures so that women are not discriminated against when issuing the order determining the list of occupations from which they will be prohibited pursuant to section 128 of the Labour Code. The Committee requests the Government to take the necessary measures to ensure that measures of protection for women are strictly limited to the protection of maternity and do not exclude women from certain types of work or employment on the basis of prejudices concerning their professional capacities and their role in society.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes with regret that the Government’s report has not been received. Noting the adoption of Act No. 15/013 of 1 August 2015 on the rules for implementing women’s rights and gender parity, and of Act No. 16/008 of 15 July 2016 amending the Family Code, it hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the specific issues raised in relation to the Family Code, and other matters raised in its previous comments.

Repetition

With regard to the human rights situation, the seriousness of which it emphasized in its previous comments, the Committee observes that, in its report of 13 January 2013 (A/HRC/19/48), the United Nations High Commissioner for Human Rights noted with grave concern the staggering number of cases of sexual and gender-based violence and called for an intensification of efforts to ensure continued progress in combating these acts of violence. The High Commissioner once again highlighted that the obstacles to combating sexual violence go beyond the weakness of state institutions and are related to cultural and socio-economic issues. In addition to the need to strengthen state responses in cases of sexual violence, there is a need to address the root causes of this violence, and particularly the precarious and disadvantaged socio-economic position of women in Congolese society. According to the report of 12 July 2013 of the United Nations High Commissioner for Human Rights (A/HRC/24/33), the human rights situation had significantly deteriorated since the January 2012 report especially in the eastern part of the country where there was an important increase in the number of human rights violations and serious violations of international humanitarian law that could amount to war crimes, committed by national security and defence forces, as well as by national armed groups. The Committee observes that the High Commissioner also confirmed that sexual violence continues to be committed at “appalling levels” throughout the country and highlighted the alarming increase in mass rape committed by armed groups and members of the Congolese army. The Committee is bound to reiterate that the objective of the Convention, especially with regard to equality of opportunity and treatment between men and women in employment and occupation, cannot be achieved in a general context of serious violations of human rights and inequality in society. Taking into account the grave concerns which continue to be expressed regarding the human rights situation and its serious effects on women, the Committee once again urges the Government to take the necessary measures to address the inferior position of women in society, which is reflected in the sexual violence committed against them and in the discriminatory legislation, which the Committee considers to have a serious impact on the application of the principles of the Convention, and to create the necessary conditions to give effect to the provisions of the Convention.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. Legislation. The Committee recalls that neither the Labour Code nor Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service contain provisions prohibiting and defining direct or indirect discrimination in employment and occupation. The Committee notes that the Government confines itself to indicating that provisions to this end will be included in the national legislation when the Labour Code is revised and Act No. 81/003 amended. The Committee once again requests the Government to take the necessary measures in the near future to ensure that all discrimination, both direct and indirect, based as a minimum on the grounds set forth in the Convention and covering all aspects of employment and occupation, are defined and explicitly prohibited by the labour legislation applicable to the public and private sectors, and to provide copies of the texts that are adopted.

Discrimination based on sex. Legislation. The Committee recalls that in its previous comments it emphasized that sections 448 and 497 of Act No. 87/010 of 1 August 1987 issuing the Family Code, and section 8(8) of Act No. 81/003 of 17 July 1981, under the terms of which a married woman has to obtain authorization from her husband to work, discriminated against women in employment and occupation. The Government indicates that it has just forwarded a revised draft of the Family Code to Parliament for adoption, and that the new conditions of service of employees in the public administration have still not been enacted. While noting this information, the Committee trusts that the Government will make every effort to ensure that new conditions of service for employees in the public administration are enacted in the near future, and that their provisions are in conformity with the Convention. The Committee requests the Government to provide a copy of this text as soon as it is enacted.

Discrimination based on race or ethnic origin. Indigenous peoples. For several years, the Committee, based in particular on the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), has emphasized the marginalization and discrimination of indigenous “pygmy” peoples in relation to the enjoyment of their economic, social and cultural rights, particularly with regard to access to education, health and the labour market and it urges the Government to take measures to guarantee equality of opportunity and treatment for indigenous peoples in employment and occupation. The Committee notes that the Government confines itself to indicating that indigenous peoples benefit from all the rights guaranteed by the Constitution and that a Bill to ensure their protection is being examined by Parliament. The Committee recalls that a true policy of equality must also include measures to correct de facto inequalities of which certain categories of the population are victims and take into account their specific needs. The Committee requests the Government to take practical measures to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources which enable them to carry out their traditional and subsistence activities, particularly to land. In this regard, the Committee requests the Government to accord particular attention to indigenous women, who are faced with additional discrimination in the labour market and within their community based on gender. The Committee also requests the Government to take measures to combat prejudices and stereotypes of which indigenous peoples are victims and to raise the awareness of other categories of the population of their culture and way of life so as to promote equality of treatment and mutual tolerance. It asks the Government to supply information on the progress made in the legislative process and the contents of the Bill to protect indigenous peoples, as well as data, disaggregated by sex, on their socio-economic situation.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Sexual harassment. The Committee notes that section 174(a) of Act No. 06/018 of 20 July 2006, amending and supplementing the Decree of 30 January 1940 issuing the Congolese Penal Code regarding sexual harassment, establishes a sentence from one to 12 years penal servitude or a fine of 50,000 to 100,000 Congolese francs (CDF), or both, for those who have engaged in “persistent behaviour towards others, through words, actions, either by giving orders or making threats, or imposing constraints, either by means of severe pressure or abuse of a position of authority, with the objective of obtaining favours of a sexual nature”. While welcoming the adoption of penal provisions addressing sexual harassment, the Committee wishes to draw the Government’s attention to the fact that, in most cases, criminal prosecution is not sufficient to eliminate sexual harassment in view of its sensitive nature and the difficulty of providing proof, in particular if there are no witnesses, which is often the case. Moreover, the Committee notes that, in line with the definition in Ministerial Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual or moral harassment in the performance of a work contract, the definition of harassment in Act No. 06/018 of 20 July 2006 only covers behaviour of the nature of quid pro quo harassment and not behaviour which results in the creation of an intimidating, hostile or humiliating work environment for a person, whether or not this behaviour is intended to obtain sexual favours. Noting the Government’s indication that it will examine the possibility of revising the Order to respond to the Committee’s concerns, the Committee strongly encourages the Government to take the necessary measures to add to the definition of sexual harassment, as it appears in the Order of 2005 and in the Penal Code, behaviour which has the effect of creating a hostile, intimidating or offensive working environment for a person. The Committee requests the Government to supply information on the application of these provisions in practice, with an indication of the applicable rules of evidence and of whether cases of sexual harassment have been dealt with by labour inspectors or the courts and, where applicable, their outcome. Please also supply information on the measures taken at the national level, such as awareness campaigns, and at the business level, particularly in enterprise rules or collective agreements, to combat sexual harassment.

Maternity leave in the public service. The Government indicates that section 25(2) of Act No. 81/003 of 17 July 1981 issuing the conditions of service of career members of the state public service under which a female employee who has taken maternity leave can no longer during the same year, assert her right to full annual leave, has been amended in the draft of the new conditions of service. However, noting that the new conditions of service of employees in the public administration has still not been adopted, the Committee trusts that it will be adopted in the near future in order to abolish all discrimination based on sex in respect of leave in the public service.

Article 2. National policy to promote gender equality. The Committee notes the measures taken by the Government to promote equality of opportunity and treatment between men and women, in particular the adoption of the National Gender Policy in 2009 and its plan of action, the establishment of focal points and gender networks in administrations and private businesses, awareness campaigns on the education of girls and the quotas established for the recruitment of judges (25 per cent of women). With regard to the “National Gender Policy”, the Committee notes that it draws up an assessment of inequalities between men and women in numerous fields and that its main objective is to “establish an institutional, socio-cultural, legal and economic environment conducive to gender equity and equality of access of men and women, boys and girls to the resources of society”. The Committee observes that the Policy is accompanied by a National Plan of Action, which was validated in 2010, and which includes a very complete series of measures to promote equality between men and women in the family, the community, the economy and in decision making. The Committee requests the Government to supply detailed information on the implementation of the National Gender Policy and its plan of action, and particularly on the application of measures to strengthen the participation of women in all fields, including education and vocational training, and their access to means of production and economic opportunities, as well as the action taken to combat prejudices and stereotypes regarding the roles of men and women in work and, more generally, in society. The Committee also requests the Government to supply information on any evaluation of the measures implemented and the results obtained. The Committee once again requests the Government to supply statistics or other information on the participation of men and women in employment in the public and private sectors and the informal economy, including the proportion of women in positions of responsibility.

Article 5. Special measures of protection for women. The Committee notes that the Government intends to take measures so that women are not discriminated against when issuing the order determining the list of occupations from which they will be prohibited pursuant to section 128 of the Labour Code. The Committee requests the Government to take the necessary measures to ensure that measures of protection for women are strictly limited to the protection of maternity and do not exclude women from certain types of work or employment on the basis of prejudices concerning their professional capacities and their role in society.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

With regard to the human rights situation, the seriousness of which it emphasized in its previous comments, the Committee observes that, in its report of 13 January 2013 (A/HRC/19/48), the United Nations High Commissioner for Human Rights noted with grave concern the staggering number of cases of sexual and gender-based violence and called for an intensification of efforts to ensure continued progress in combating these acts of violence. The High Commissioner once again highlighted that the obstacles to combating sexual violence go beyond the weakness of state institutions and are related to cultural and socio-economic issues. In addition to the need to strengthen state responses in cases of sexual violence, there is a need to address the root causes of this violence, and particularly the precarious and disadvantaged socio-economic position of women in Congolese society. According to the report of 12 July 2013 of the United Nations High Commissioner for Human Rights (A/HRC/24/33), the human rights situation had significantly deteriorated since the January 2012 report especially in the eastern part of the country where there was an important increase in the number of human rights violations and serious violations of international humanitarian law that could amount to war crimes, committed by national security and defence forces, as well as by national armed groups. The Committee observes that the High Commissioner also confirmed that sexual violence continues to be committed at “appalling levels” throughout the country and highlighted the alarming increase in mass rape committed by armed groups and members of the Congolese army. The Committee is bound to reiterate that the objective of the Convention, especially with regard to equality of opportunity and treatment between men and women in employment and occupation, cannot be achieved in a general context of serious violations of human rights and inequality in society. Taking into account the grave concerns which continue to be expressed regarding the human rights situation and its serious effects on women, the Committee once again urges the Government to take the necessary measures to address the inferior position of women in society, which is reflected in the sexual violence committed against them and in the discriminatory legislation, which the Committee considers to have a serious impact on the application of the principles of the Convention, and to create the necessary conditions to give effect to the provisions of the Convention.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. Legislation. The Committee recalls that neither the Labour Code nor Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service contain provisions prohibiting and defining direct or indirect discrimination in employment and occupation. The Committee notes that the Government confines itself to indicating that provisions to this end will be included in the national legislation when the Labour Code is revised and Act No. 81/003 amended. The Committee once again requests the Government to take the necessary measures in the near future to ensure that all discrimination, both direct and indirect, based as a minimum on the grounds set forth in the Convention and covering all aspects of employment and occupation, are defined and explicitly prohibited by the labour legislation applicable to the public and private sectors, and to provide copies of the texts that are adopted.

Discrimination based on sex. Legislation. The Committee recalls that in its previous comments it emphasized that sections 448 and 497 of Act No. 87/010 of 1 August 1987 issuing the Family Code, and section 8(8) of Act No. 81/003 of 17 July 1981, under the terms of which a married woman has to obtain authorization from her husband to work, discriminated against women in employment and occupation. The Government indicates that it has just forwarded a revised draft of the Family Code to Parliament for adoption, and that the new conditions of service of employees in the public administration have still not been enacted. While noting this information, the Committee observes that these texts have been in the process of revision for several years and trusts that the Government will make every effort to ensure that the Family Code is revised, new conditions of service for employees in the public administration are adopted and enacted in the near future, and that their provisions are in conformity with the Convention. The Committee requests the Government to provide copies of these texts as soon as they are adopted and enacted.

Discrimination based on race or ethnic origin. Indigenous peoples. For several years, the Committee, based in particular on the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), has emphasized the marginalization and discrimination of indigenous “pygmy” peoples in relation to the enjoyment of their economic, social and cultural rights, particularly with regard to access to education, health and the labour market and it urges the Government to take measures to guarantee equality of opportunity and treatment for indigenous peoples in employment and occupation. The Committee notes that the Government confines itself to indicating that indigenous peoples benefit from all the rights guaranteed by the Constitution and that a Bill to ensure their protection is being examined by Parliament. The Committee recalls that a true policy of equality must also include measures to correct de facto inequalities of which certain categories of the population are victims and take into account their specific needs. The Committee requests the Government to take practical measures to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources which enable them to carry out their traditional and subsistence activities, particularly to land. In this regard, the Committee requests the Government to accord particular attention to indigenous women, who are faced with additional discrimination in the labour market and within their community based on gender. The Committee also requests the Government to take measures to combat prejudices and stereotypes of which indigenous peoples are victims and to raise the awareness of other categories of the population of their culture and way of life so as to promote equality of treatment and mutual tolerance. It asks the Government to supply information on the progress made in the legislative process and the contents of the Bill to protect indigenous peoples, as well as data, disaggregated by sex, on their socio-economic situation.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Sexual harassment. The Committee notes that section 174(a) of Act No. 06/018 of 20 July 2006, amending and supplementing the Decree of 30 January 1940 issuing the Congolese Penal Code regarding sexual harassment, establishes a sentence from one to 12 years penal servitude or a fine of 50,000 to 100,000 Congolese francs (CDF), or both, for those who have engaged in “persistent behaviour towards others, through words, actions, either by giving orders or making threats, or imposing constraints, either by means of severe pressure or abuse of a position of authority, with the objective of obtaining favours of a sexual nature”. While welcoming the adoption of penal provisions addressing sexual harassment, the Committee wishes to draw the Government’s attention to the fact that, in most cases, criminal prosecution is not sufficient to eliminate sexual harassment in view of its sensitive nature and the difficulty of providing proof, in particular if there are no witnesses, which is often the case. Moreover, the Committee notes that, in line with the definition in Ministerial Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual or moral harassment in the performance of a work contract, the definition of harassment in Act No. 06/018 of 20 July 2006 only covers behaviour of the nature of quid pro quo harassment and not behaviour which results in the creation of an intimidating, hostile or humiliating work environment for a person, whether or not this behaviour is intended to obtain sexual favours. Noting the Government’s indication that it will examine the possibility of revising the Order to respond to the Committee’s concerns, the Committee strongly encourages the Government to take the necessary measures to add to the definition of sexual harassment, as it appears in the Order of 2005 and in the Penal Code, behaviour which has the effect of creating a hostile, intimidating or offensive working environment for a person. The Committee requests the Government to supply information on the application of these provisions in practice, with an indication of the applicable rules of evidence and of whether cases of sexual harassment have been dealt with by labour inspectors or the courts and, where applicable, their outcome. Please also supply information on the measures taken at the national level, such as awareness campaigns, and at the business level, particularly in enterprise rules or collective agreements, to combat sexual harassment.

Maternity leave in the public service. The Government indicates that section 25(2) of Act No. 81/003 of 17 July 1981 issuing the conditions of service of career members of the state public service under which a female employee who has taken maternity leave can no longer during the same year, assert her right to full annual leave, has been amended in the draft of the new conditions of service. However, noting that the new conditions of service of employees in the public administration has still not been adopted, the Committee trusts that it will be adopted in the near future in order to abolish all discrimination based on sex in respect of leave in the public service.

Article 2. National policy to promote gender equality. The Committee notes the measures taken by the Government to promote equality of opportunity and treatment between men and women, in particular the adoption of the National Gender Policy in 2009 and its plan of action, the establishment of focal points and gender networks in administrations and private businesses, awareness campaigns on the education of girls and the quotas established for the recruitment of judges (25 per cent of women). With regard to the “National Gender Policy”, the Committee notes that it draws up an assessment of inequalities between men and women in numerous fields and that its main objective is to “establish an institutional, socio-cultural, legal and economic environment conducive to gender equity and equality of access of men and women, boys and girls to the resources of society”. The Committee observes that the Policy is accompanied by a National Plan of Action, which was validated in 2010, and which includes a very complete series of measures to promote equality between men and women in the family, the community, the economy and in decision-making. The Committee requests the Government to supply detailed information on the implementation of the National Gender Policy and its plan of action, and particularly on the application of measures to strengthen the participation of women in all fields, including education and vocational training, and their access to means of production and economic opportunities, as well as the action taken to combat prejudices and stereotypes regarding the roles of men and women in work and, more generally, in society. The Committee also requests the Government to supply information on any evaluation of the measures implemented and the results obtained. The Committee once again requests the Government to supply statistics or other information on the participation of men and women in employment in the public and private sectors and the informal economy, including the proportion of women in positions of responsibility.

Article 5. Special measures of protection for women. The Committee notes that the Government intends to take measures so that women are not discriminated against when issuing the order determining the list of occupations from which they will be prohibited pursuant to section 128 of the Labour Code. The Committee requests the Government to take the necessary measures to ensure that measures of protection for women are strictly limited to the protection of maternity and do not exclude women from certain types of work or employment on the basis of prejudices concerning their professional capacities and their role in society.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

With regard to the human rights situation, the seriousness of which it emphasized in its previous comments, the Committee observes that, in its report of 13 January 2013 (A/HRC/19/48), the United Nations High Commissioner for Human Rights noted with grave concern the staggering number of cases of sexual and gender-based violence and called for an intensification of efforts to ensure continued progress in combating these acts of violence. The High Commissioner once again highlighted that the obstacles to combating sexual violence go beyond the weakness of state institutions and are related to cultural and socio-economic issues. In addition to the need to strengthen state responses in cases of sexual violence, there is a need to address the root causes of this violence, and particularly the precarious and disadvantaged socio-economic position of women in Congolese society. According to the report of 12 July 2013 of the United Nations High Commissioner for Human Rights (A/HRC/24/33), the human rights situation had significantly deteriorated since the January 2012 report especially in the eastern part of the country where there was an important increase in the number of human rights violations and serious violations of international humanitarian law that could amount to war crimes, committed by national security and defence forces, as well as by national armed groups. The Committee observes that the High Commissioner also confirmed that sexual violence continues to be committed at “appalling levels” throughout the country and highlighted the alarming increase in mass rape committed by armed groups and members of the Congolese army. The Committee is bound to reiterate that the objective of the Convention, especially with regard to equality of opportunity and treatment between men and women in employment and occupation, cannot be achieved in a general context of serious violations of human rights and inequality in society. Taking into account the grave concerns which continue to be expressed regarding the human rights situation and its serious effects on women, the Committee once again urges the Government to take the necessary measures to address the inferior position of women in society, which is reflected in the sexual violence committed against them and in the discriminatory legislation, which the Committee considers to have a serious impact on the application of the principles of the Convention, and to create the necessary conditions to give effect to the provisions of the Convention.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. Legislation. The Committee recalls that neither the Labour Code nor Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service contain provisions prohibiting and defining direct or indirect discrimination in employment and occupation. The Committee notes that the Government confines itself to indicating that provisions to this end will be included in the national legislation when the Labour Code is revised and Act No. 81/003 amended. The Committee once again requests the Government to take the necessary measures in the near future to ensure that all discrimination, both direct and indirect, based as a minimum on the grounds set forth in the Convention and covering all aspects of employment and occupation, are defined and explicitly prohibited by the labour legislation applicable to the public and private sectors, and to provide copies of the texts that are adopted.

Discrimination based on sex. Legislation. The Committee recalls that in its previous comments it emphasized that sections 448 and 497 of Act No. 87/010 of 1 August 1987 issuing the Family Code, section 8(8) of Act No. 81/003 of 17 July 1981 and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988 issuing the conditions of service of magistrates, under the terms of which a married woman has to obtain authorization from her husband to work, discriminated against women in employment and occupation. The Committee notes with interest that the new conditions of service of magistrates (Act No. 06/020 of 10 October 2006) no longer contain this type of provision. The Government also indicates that it has just forwarded a revised draft of the Family Code to Parliament for adoption, and that the new conditions of service of employees in the public administration have still not been enacted. While noting this information, the Committee observes that these texts have been in the process of revision for several years and trusts that the Government will make every effort to ensure that the Family Code is revised, new conditions of service for employees in the public administration are adopted and enacted in the near future, and that their provisions are in conformity with the Convention. The Committee requests the Government to provide copies of these texts as soon as they are adopted and enacted.

Discrimination based on race or ethnic origin. Indigenous peoples. For several years, the Committee, based in particular on the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), has emphasized the marginalization and discrimination of indigenous “pygmy” peoples in relation to the enjoyment of their economic, social and cultural rights, particularly with regard to access to education, health and the labour market and it urges the Government to take measures to guarantee equality of opportunity and treatment for indigenous peoples in employment and occupation. The Committee notes that the Government confines itself to indicating that indigenous peoples benefit from all the rights guaranteed by the Constitution and that a Bill to ensure their protection is being examined by Parliament. The Committee recalls that a true policy of equality must also include measures to correct de facto inequalities of which certain categories of the population are victims and take into account their specific needs. The Committee requests the Government to take practical measures to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources which enable them to carry out their traditional and subsistence activities, particularly to land. In this regard, the Committee requests the Government to accord particular attention to indigenous women, who are faced with additional discrimination in the labour market and within their community based on gender. The Committee also requests the Government to take measures to combat prejudices and stereotypes of which indigenous peoples are victims and to raise the awareness of other categories of the population of their culture and way of life so as to promote equality of treatment and mutual tolerance. It asks the Government to supply information on the progress made in the legislative process and the contents of the Bill to protect indigenous peoples, as well as data, disaggregated by sex, on their socio-economic situation.

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that, under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Article 5. Special protection for women. The Committee recalls that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes the Government’s statement that the National Labour Council has not yet adopted the Order concerning the working conditions of women and defining the nature of jobs prohibited to women, which would replace Ministerial Order No. 68/13 of 17 May 1968. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society and the labour market violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the Order as soon as it has been adopted.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

The Committee notes from the third joint report of seven United Nations experts on the situation in the Democratic Republic of the Congo (A/HRC/16/68, 9 March 2011) that the human rights situation in the country remains of serious concern, especially in the east of the country. The Committee notes particularly the concerns expressed with respect to sexual violence against women, including systematic and mass rape, and related impunity, as highlighted in the most recent report submitted by the United Nations High Commissioner for Human Rights (A/HRC/16/27, 10 January 2011). The Committee notes that the recommendations to the Government in the report include repealing all provisions of law that discriminate against women, denouncing publically and unequivocally all forms of forms of violence against women, and ensuring that the judicial system brings the perpetrators of such violations to justice promptly and impartially. The Committee notes that according to the report, sexual violence remains widespread despite the Government’s efforts to stop it and the phenomenon is rampant throughout the country and affects thousands of women. The recent mass rapes committed in Walikale territory exemplify this scourge. The Committee further notes that the UN High Commissioner for Human Rights considers that the situation of women will remain precarious as long as the State fails to tackle in earnest the social roots of sexual violence, i.e. women’s inferior social, economic and political status in Congolese society. The Committee recalls that the objective of the Convention, notably equality of opportunity between men and women in employment and occupation cannot be achieved in a general context of serious human rights violations and inequality in society. Considering the serious concerns raised regarding the human rights situation and its particular effects on women due to their inferior economic and social status in society, the Committee urges the Government to take all the necessary measures to address the inferior position of women in society reflected in sexual violence against women and discriminatory laws, which it considers has a serious impact on the application of the principles of the Convention. In this context, the Committee also urges the Government to create all the necessary conditions to give effect to the provisions of the Convention.

The Committee notes the Government’s very brief report in reply to its previous observation, in which it raised issues relating to the legislative prohibition of discrimination in employment and occupation, discrimination based on sex, and discrimination based on race or ethnic origin.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee recalls that, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin, the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation. Act No. 81/003 of 17 July 1981 on the conditions of service of career members of the state public service also lacks anti-discrimination provisions. The Committee notes that the Government repeats its statement that it will include provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, once it has been determined when the revision of the Labour Code will take place. The Committee urges the Government to make progress in this regard and asks the Government to indicate all steps with a view to including provisions in the Labour Code and Act No. 81/003 defining and prohibiting direct and indirect discrimination, in all aspects of employment and occupation, on at least all the grounds enumerated in the Convention.

Discrimination based on sex. The Committee previously noted that certain provisions of the Family Code, of Act No. 81/003 of 17 July 1981, on the conditions of service of career members of the state public services, and of the Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, constituted discrimination on grounds of sex in employment and occupation contrary to the Convention. The Committee recalls that sections 448 and 497 of Act No. 87/010 of 1 August 1987, enacting the Family Code, appear to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. In relation to jobs in the public service, section 8 of Act No. 81/003 of 17 July 1981 and section 1(7) of Legislative Ordinance No. 88 056 of 29 September 1988 provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee notes the Government’s statement that the Statute of magistrates will be communicated in its next report and that the Statute of the public administration has not yet been promulgated. The Committee having previously noted that the modification of the abovementioned texts was under way, requests the Government to make progress in bringing the abovementioned provisions, including those in the Family Code, into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. The Committee notes that the Government’s report does not reply to the Committee’s previous comments regarding the socio-economic situation of the Batwa, and discrimination faced by the Batwa in employment and occupation. The Committee had noted in this context the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, of 17 August 2007, expressing concern that “pygmies” (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market. CERD also expressed concern that the rights of these groups to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government once again to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. The Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 5. Special protection for women. The Committee recalls that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes the Government’s statement that the National Labour Council has not yet adopted the Order concerning the working conditions of women and defining the nature of jobs prohibited to women, which would replace Ministerial Order No. 68/13 of 17 May 1968. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society and the labour market violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the Order as soon as it has been adopted.

The Committee notes with regret that the Government’s report contains no reply to its previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that, under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes from the third joint report of seven United Nations experts on the situation in the Democratic Republic of the Congo (A/HRC/16/68, 9 March 2011) that the human rights situation in the country remains of serious concern, especially in the east of the country. The Committee notes particularly the concerns expressed with respect to sexual violence against women, including systematic and mass rape, and related impunity, as highlighted in the most recent report submitted by the United Nations High Commissioner for Human Rights (A/HRC/16/27, 10 January 2011). The Committee notes that the recommendations to the Government in the report include repealing all provisions of law that discriminate against women, denouncing publically and unequivocally all forms of forms of violence against women, and ensuring that the judicial system brings the perpetrators of such violations to justice promptly and impartially. The Committee notes that according to the report, sexual violence remains widespread despite the Government’s efforts to stop it and the phenomenon is rampant throughout the country and affects thousands of women. The recent mass rapes committed in Walikale territory exemplify this scourge. The Committee further notes that the UN High Commissioner for Human Rights considers that the situation of women will remain precarious as long as the State fails to tackle in earnest the social roots of sexual violence, i.e. women’s inferior social, economic and political status in Congolese society. The Committee recalls that the objective of the Convention, notably equality of opportunity between men and women in employment and occupation cannot be achieved in a general context of serious human rights violations and inequality in society. Considering the serious concerns raised regarding the human rights situation and its particular effects on women due to their inferior economic and social status in society, the Committee urges the Government to take all the necessary measures to address the inferior position of women in society reflected in sexual violence against women and discriminatory laws, which it considers has a serious impact on the application of the principles of the Convention. In this context, the Committee also urges the Government to create all the necessary conditions to give effect to the provisions of the Convention.

The Committee notes the Government’s very brief report in reply to its previous observation, in which it raised issues relating to the legislative prohibition of discrimination in employment and occupation, discrimination based on sex, and discrimination based on race or ethnic origin.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee recalls that, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin, the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation. Act No. 81/003 of 17 July 1981 on the conditions of service of career members of the state public service also lacks anti-discrimination provisions. The Committee notes that the Government repeats its statement that it will include provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, once it has been determined when the revision of the Labour Code will take place. The Committee urges the Government to make progress in this regard and asks the Government to indicate all steps with a view to including provisions in the Labour Code and Act No. 81/003 defining and prohibiting direct and indirect discrimination, in all aspects of employment and occupation, on at least all the grounds enumerated in the Convention.

Discrimination based on sex. The Committee previously noted that certain provisions of the Family Code, of Act No. 81/003 of 17 July 1981, on the conditions of service of career members of the state public services, and of the Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, constituted discrimination on grounds of sex in employment and occupation contrary to the Convention. The Committee recalls that sections 448 and 497 of Act No. 87/010 of 1 August 1987, enacting the Family Code, appear to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. In relation to jobs in the public service, section 8 of Act No. 81/003 of 17 July 1981 and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988 provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee notes the Government’s statement that the Statute of magistrates will be communicated in its next report and that the Statute of the public administration has not yet been promulgated. The Committee having previously noted that the modification of the abovementioned texts was under way, requests the Government to make progress in bringing the abovementioned provisions, including those in the Family Code, into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. The Committee notes that the Government’s report does not reply to the Committee’s previous comments regarding the socio-economic situation of the Batwa, and discrimination faced by the Batwa in employment and occupation. The Committee had noted in this context the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, of 17 August 2007, expressing concern that “pygmies” (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market. CERD also expressed concern that the rights of these groups to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government once again to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. The Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that, under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Article 5. Special protection for women. Section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes from the Government’s report that the National Labour Council, in the context of its sessions in 2005 and 2008, has adopted a draft Order concerning the working conditions of women, which would replace Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the draft Order mentioned above as soon as published.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee previously noted that the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin. Act No. 81/003 of 17 July 1981, which promulgates the conditions of service of career members of the state public service, also lacks anti-discrimination provisions. Recalling its previous comments concerning the need to include in legislation provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, the Committee welcomes the Government’s statement that it will examine the matter and take the Committee’s comments into account. The Government is requested to indicate the steps taken with a view to including such provisions in the Labour Code and Act No. 81/003 and any progress made in this regard.

Discrimination based on sex. The Committee previously noted that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee considers that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. In this regard, the Committee welcomes the Government’s statement that these provisions, being contrary to the Constitution, are null and void and that the modification of these texts was under way. The Committee requests the Government to provide information on the steps taken to bring the abovementioned provisions into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. In response to the Committee’s comments regarding the socio-economic situation of the Batwa, a minority indigenous group, and discrimination faced by the Batwa in employment and occupation, the Government refers to article 51 of the Constitution under which the State has the obligation to ensure and promote the peaceful and harmonious coexistence of all ethnic groups of the country. In addition, article 51 requires the State to ensure the protection and promotion of vulnerable groups and minorities. The Committee also notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations of 17 August 2007, expressed concern that pygmies (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market, and also that the rights of pygmies to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise
of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. In this context, the Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that, under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Article 5. Special protection for women. Section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes from the Government’s report that the National Labour Council, in the context of its sessions in 2005 and 2008, has adopted a draft Order concerning the working conditions of women, which would replace Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the draft Order mentioned above as soon as published.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee previously noted that the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin. Act No. 81/003 of 17 July 1981, which promulgates the conditions of service of career members of the state public service, also lacks anti-discrimination provisions. Recalling its previous comments concerning the need to include in legislation provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, the Committee welcomes the Government’s statement that it will examine the matter and take the Committee’s comments into account. The Government is requested to indicate the steps taken with a view to including such provisions in the Labour Code and Act No. 81/003 and any progress made in this regard.

Discrimination based on sex. The Committee previously noted that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee considers that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. In this regard, the Committee welcomes the Government’s statement that these provisions, being contrary to the Constitution, are null and void and that the modification of these texts was under way. The Committee requests the Government to provide information on the steps taken to bring the abovementioned provisions into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. In response to the Committee’s comments regarding the socio-economic situation of the Batwa, a minority indigenous group, and discrimination faced by the Batwa in employment and occupation, the Government refers to article 51 of the Constitution under which the State has the obligation to ensure and promote the peaceful and harmonious coexistence of all ethnic groups of the country. In addition, article 51 requires the State to ensure the protection and promotion of vulnerable groups and minorities. The Committee also notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations of 17 August 2007, expressed concern that pygmies (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market, and also that the rights of pygmies to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. In this context, the Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Discrimination based on sex. Sexual harassment. The Committee thanks the Government for providing a copy of Order No. 12/CAB-MIN/TPS/114/2005 of 26 October 2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes that sexual harassment as defined by the Order includes any behaviour directed towards another person with the objective of obtaining favour of a sexual nature for oneself or a third person (section 1(1)); and any use of one’s authority to exert pressure on a person with the objective of obtaining favours of a sexual nature (section (1(2)). With regard to the issue of proof, section 3 states that “sexual and moral harassment is proven by all legal means”. As regards sanctions, section 4 provides that victims of sexual or moral harassment can resolve their contract for serious misconduct of the other party and section 5 states that enterprise rules or collective agreements can provide for disciplinary sanctions.

While the Committee welcomes the adoption of the Order, it also recalls that sexual harassment, as outlined in the Committee’s general observation of 2002, also includes any conduct that creates an intimidating, hostile or humiliating working environment for the recipient, irrespective of whether it aims at obtaining sexual favours (i.e. hostile work environment). However, such harassment appears not to be covered by section 1 of the Order. The Committee also notes that the only remedy available to victims of sexual harassment under the Labour Code and the Order is to terminate the employment contract for serious misconduct of the employer, although disciplinary sanctions may be envisaged in enterprise rules or collective agreements.

The Committee requests the Government to consider broadening the definition of sexual harassment to include conduct creating a hostile work environment and to envisage the adoption of laws or regulations offering additional avenues for redress to victims of sexual harassment, and to provide information on any measures taken or envisaged in this regard. With regard to section 5 of the abovementioned Order, the Committee requests the Government to indicate the applicable rules as regards the burden of proof, and to provide examples of enterprise rules or collective agreements providing for sanctions in case of sexual harassment.

Maternity leave in the public service. The Committee previously noted that under section 25(2) of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public service, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee emphasized that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. The Committee notes the Government’s indication that it will address this issue when new legislation governing public service employment is being adopted. The Committee requests the Government to supply information on the measures taken to bring the legislation into conformity with the Convention with respect to this matter.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes from the Government’s report that the Government is implementing a gender mainstreaming strategy which, inter alia, aims at promoting women’s access to decision-making positions. The Ministry of Gender, Family and the Child is developing a national gender policy. Since 2003, a national strategy to increase girls’ access to education has been implemented. The Committee requests the Government to provide further information on the measures taken or envisaged to promote equality of opportunity and treatment of women in employment and occupation, including measures to raise awareness and understanding of the principle of equality at work among men and women, and to enhance women’s access to education and training. The Committee also requests the Government to provide, as far as possible, statistical or other information on the participation of men and women in employment in the private and public sectors, and the informal economy, including information on women’s share in decision-making positions.

Article 5. Special protection for women. Section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code provides that Orders of the Minister of Labour and Social Insurance define the nature of jobs which are prohibited for women. In this regard, the Committee notes from the Government’s report that the National Labour Council, in the context of its sessions in 2005 and 2008, has adopted a draft Order concerning the working conditions of women, which would replace Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children. The Committee reminds the Government that protective measures which exclude women from certain work or jobs, based on stereotypical perceptions of their abilities and their role in society violate the principle of equality of opportunity and treatment. The Committee requests the Government to take the necessary steps to ensure that protective measures for women are strictly limited to maternity protection, and requests the Government to provide a copy of the draft Order mentioned above as soon as published.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee previously noted that the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin. Act No. 81/003 of 17 July 1981, which promulgates the conditions of service of career members of the state public service, also lacks anti-discrimination provisions. Recalling its previous comments concerning the need to include in legislation provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, the Committee welcomes the Government’s statement that it will examine the matter and take the Committee’s comments into account. The Government is requested to indicate the steps taken with a view to including such provisions in the Labour Code and Act No. 81/003 and any progress made in this regard.

Discrimination based on sex. The Committee previously noted that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the state public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee considers that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. In this regard, the Committee welcomes the Government’s statement that these provisions, being contrary to the Constitution, are null and void and that the modification of these texts was under way. The Committee requests the Government to provide information on the steps taken to bring the abovementioned provisions into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. In response to the Committee’s comments regarding the socio-economic situation of the Batwa, a minority indigenous group, and discrimination faced by the Batwa in employment and occupation, the Government refers to article 51 of the Constitution under which the State has the obligation to ensure and promote the peaceful and harmonious coexistence of all ethnic groups of the country. In addition, article 51 requires the State to ensure the protection and promotion of vulnerable groups and minorities. The Committee also notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations of 17 August 2007, expressed concern that pygmies (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market, and also that the rights of pygmies to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. In this context, the Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Sexual harassment. The Committee notes with interest that the Ministry of Labour and Social Services, with the approval of the National Labour Council, adopted Order No. 12/CAB-MIN/TPS/114/2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes, unfortunately, that a copy of the Order was not received. It also notes that in its response to the Committee on the Elimination of Discrimination against Women (CEDAW/C/COD/Q/5/Add.1, 17 May 2006), the Government states that the Ministry on the Status of Women and the Family along with human rights NGOs are conducting awareness-raising campaigns on the problem of sexual harassment. The Committee looks forward to receiving a copy of Ministerial Order No. 12/CAB-MIN/TPS/114/2005 along with the Government’s next report. Recalling from its previous comment that the Labour Code prohibits, but does not define sexual harassment, the Committee again reminds the Government that sexual harassment includes both the notion of “quid pro quo” harassment and hostile work environment, as set out in the Committee’s general observation of 2002, and it hopes that both of these elements will be prohibited in law and in practice and requests information in this regard. Also, having noted that the only remedy available to victims of sexual harassment under the Labour Code is to terminate the employment contract for serious misconduct of the employer, the Committee hopes that additional avenues of redress will be available to alleged victims of sexual harassment that, for example, would allow workers to bring a sexual harassment complaint without jeopardizing their employment. Finally, please also include information on the above awareness-raising campaigns and on their impact in addressing sexual harassment in employment and occupation.

2. Article 1(1) of the Convention. Prohibition of discrimination. The Committee notes that the new Constitution was approved by referendum and subsequently came into force in February 2006. Recalling its earlier comments, the Committee notes that article 13 (prohibition of discrimination) only applies to Congolese nationals. It reminds the Government that non-nationals cannot be excluded from the scope of application of the Convention and asks for an indication in its next report on how non-nationals are protected against discrimination on the grounds set forth in Article 1(1)(a) of the Convention.

3. Noting that the Government’s report does not respond to all of the points raised in its previous comments, the Committee hopes the Government will provide full information on the following points set forth in its earlier direct request.

4. The Committee notes that the Labour Code of 2002 applies to all employers and workers, with the exception of career members of the state public services regardless, inter alia, of race, sex, civil status, religion, political opinion, national extraction, social origin (section 1). It also notes that section 62 of the Labour Code provides that, among other grounds, race, colour, sex, marital status, family responsibilities, pregnancy, confinement and its consequences, religion, political opinion, national extraction, social origin and ethnic group are not valid reasons for dismissal. In the absence of a provision in the Labour Code explicitly defining and prohibiting direct and indirect discrimination in all fields of employment and occupation, and not only in relation to dismissal, the Committee requests the Government to indicate in its next report the manner in which protection against discrimination is ensured in other areas of employment and occupation, such as access to employment, vocational training and terms and conditions of employment. Furthermore, it hopes that the Government will examine the possibility of amending the Labour Code so as to include a definition and prohibition of discrimination, taking into account the requirements of the Convention.

5. Discrimination on grounds of sex. The Committee notes that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee wishes to specify that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. Given the Government’s indication in its response to CEDAW that it is taking into account all matters inconsistent with respect to women’s fundamental rights in the harmonization of its Family Code (CEDAW/C/COD/Q/5/Add.1, paragraph 20), the Committee asks the Government to provide information in its next report on the outcome of this harmonization process with regard to prohibiting discrimination in employment and occupation on the basis of sex. The Committee also requests the Government to indicate the measures adopted or envisaged to amend the other provisions mentioned above so as to bring them into conformity with the Convention.

6. Discrimination on grounds of race or ethnic origin. The Committee notes the report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2004/34, 10 March 2004, paragraphs 96 and 97), according to which, the Batwa, a minority indigenous people, are subject to large-scale acts of discrimination of all kinds by other parts of the population and have no access to education, health and housing. The Committee requests the Government to indicate whether an analysis has been undertaken or is envisaged of the socio-economic situation of the Batwa and, if so, to provide copies of these studies with its next report. It also requests the Government to provide information on any other initiatives adopted or envisaged to eliminate all forms of discrimination based on race or ethnic origin, including against the Batwa, in employment and education.

7. Article 2. National policy. The Committee notes that article 14 of the Constitution provides that the public authorities shall see to the elimination of all forms of discrimination against women and ensure the protection and promotion of their rights. It also notes the National Programme for the Promotion of Congolese Women, which was established in response to the recommendations of the World Conference on Women (Beijing, 1995). The Committee would be grateful if the Government would provide information on the implementation of this programme and on the results achieved in practice through activities to promote equality of opportunity and treatment between men and women in employment and occupation. However, noting that the national programme referred to in the Government’s earlier report is essentially targeted at achieving equality of men and women, the Committee would be grateful if the Government would indicate the measures adopted or envisaged, within the framework of the national policy, to promote compliance with the principles set out in the Convention in relation to the other grounds that it covers, namely race, colour, religion, political opinion, national extraction and social origin.

8. Article 3(a). Cooperation of the social partners. The Committee notes that section 37 of the National Interoccupational Collective Labour Agreement provides that “women shall enjoy the same rights at work as men in accordance with the legal provisions and regulations”. It requests the Government to continue providing information in its next report on the measures adopted to cooperate with the social partners in promoting the acceptance of the national policy of equality of opportunity and treatment in relation to all the grounds of discrimination set forth in the Convention, and the results achieved in practice.

9. Article 3(b). Educational programmes. The Committee again requests the Government to provide information on educational programmes intended to secure the acceptance and observance of the national policy of equality of opportunity and treatment.

10. Article 3(d). Employment in the public service. The Committee notes Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public service. Noting that this Act does not contain any provision prohibiting discrimination in employment and occupation, the Committee requests the Government to provide information in its next report on the manner in which the principles of equality of opportunity and treatment in employment and occupation apply to career members of the public service. Furthermore, the Committee notes that, under section 25(2) of the Act, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee wishes to emphasize that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. It therefore requests the Government to provide information on the measures adopted or envisaged to secure for women employees a period of maternity leave which is additional to annual leave and to bring the national legislation fully into conformity with the provisions of the Convention.

11. Article 3(e). Vocational training. The Committee notes section 17 of Ordinance No. 71/055 of 26 March 1971, respecting vocational training, further training and apprenticeship, under the terms of which “employers shall establish systematic training plans for workers in their service. These plans shall take into account the needs of enterprises for trained personnel, without having the effect of excluding certain categories of workers from training plans”. The Committee would be grateful if the Government would provide information on the application of this provision in practice, as well as indications of the measures taken to promote observance of the principle of the Convention in relation to vocational training and guidance services under the direction of a national authority.

12. Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. The Committee again asks the Government to provide information on the provisions respecting the employment or occupational activity of persons covered by Article 4 of the Convention, and the remedies available to such persons.

13. Article 5. Special measures of protection for women. The Committee notes that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code of Orders of the Minister of Labour and Social Insurance defines the nature of jobs which are prohibited for women. It notes that Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children, prohibits the assignment of women to several types of work. The Committee recalls that, following the 1985 resolution on equal opportunities and equal treatment for men and women in employment, special protective measures for women, which are based on stereotyped perceptions of their capacity and role in society, have been challenged and may give rise to violations of the principle of equality of opportunity and treatment. It requests the Government to envisage re-examining, in consultation with the representatives of employers’ and workers’ organizations, and with women workers, the legislative provisions relating to women to determine whether they are necessary and appropriate to achieve the objective of equality of opportunity and treatment, and to keep it informed of the progress achieved in this respect. Furthermore, noting the Government’s response to CEDAW that the Labour Code’s prohibition of night work by women has been amended and that the draft Code is before the Parliament for adoption (CEDAW/C/COD/Q/5/Add.1, paragraph 23), the Committee looks forward to receiving information on the revised night work provision.

14. Parts IV and V of the report form. Court decisions and application in practice. The Committee requests the Government to provide information in its next report on administrative or judicial decisions relating to cases of discrimination based on the grounds set forth in the Convention. The Committee also requests the Government to provide, where available, reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all fields of vocational training and employment, as well as any information enabling the Committee to assess the manner in which the Convention is applied in practice.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Sexual harassment. The Committee notes with interest that the Ministry of Labour and Social Services, with the approval of the National Labour Council, adopted Order No. 12/CAB-MIN/TPS/114/2005 prohibiting sexual and moral harassment in the performance of an employment contract. The Committee notes, unfortunately, that a copy of the Order was not received. It also notes that in its response to the Committee on the Elimination of Discrimination against Women (CEDAW/C/COD/Q/5/Add.1, 17 May 2006), the Government states that the Ministry on the Status of Women and the Family along with human rights NGOs are conducting awareness-raising campaigns on the problem of sexual harassment. The Committee looks forward to receiving a copy of Ministerial Order No.  12/CAB-MIN/TPS/114/2005 along with the Government’s next report. Recalling from its previous comment that the Labour Code prohibits, but does not define sexual harassment, the Committee again reminds the Government that sexual harassment includes both the notion of “quid pro quo” harassment and hostile work environment, as set out in the Committee’s general observation of 2002, and it hopes that both of these elements will be prohibited in law and in practice and requests information in this regard. Also, having noted that the only remedy available to victims of sexual harassment under the Labour Code is to terminate the employment contract for serious misconduct of the employer, the Committee hopes that additional avenues of redress will be available to alleged victims of sexual harassment that, for example, would allow workers to bring a sexual harassment complaint without jeopardizing their employment. Finally, please also include information on the above awareness-raising campaigns and on their impact in addressing sexual harassment in employment and occupation.

2. Article 1(1) of the Convention. Prohibition of discrimination. The Committee notes that the new Constitution was approved by referendum and subsequently came into force in February 2006. Recalling its earlier comments, the Committee notes that article 13 (prohibition of discrimination) only applies to Congolese nationals. It reminds the Government that non-nationals cannot be excluded from the scope of application of the Convention and asks for an indication in its next report on how non-nationals are protected against discrimination on the grounds set forth in Article 1(1)(a) of the Convention.

3. Noting that the Government’s report does not respond to all of the points raised in its previous comments, the Committee hopes the Government will provide full information on the following points set forth in its earlier direct request.

4. The Committee notes that the Labour Code of 2002 applies to all employers and workers, with the exception of career members of the State public services regardless, inter alia, of race, sex, civil status, religion, political opinion, national extraction, social origin (section 1). It also notes that section 62 of the Labour Code provides that, among other grounds, race, colour, sex, marital status, family responsibilities, pregnancy, confinement and its consequences, religion, political opinion, national extraction, social origin and ethnic group are not valid reasons for dismissal. In the absence of a provision in the Labour Code explicitly defining and prohibiting direct and indirect discrimination in all fields of employment and occupation, and not only in relation to dismissal, the Committee requests the Government to indicate in its next report the manner in which protection against discrimination is ensured in other areas of employment and occupation, such as access to employment, vocational training and terms and conditions of employment. Furthermore, it hopes that the Government will examine the possibility of amending the Labour Code so as to include a definition and prohibition of discrimination, taking into account the requirements of the Convention.

5. Discrimination on grounds of sex. The Committee notes that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee wishes to specify that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. Given the Government’s indication in its response to CEDAW that it is taking into account all matters inconsistent with respect to women’s fundamental rights in the harmonization of its Family Code (CEDAW/C/COD/Q/5/Add.1, paragraph 20), the Committee asks the Government to provide information in its next report on the outcome of this harmonization process with regard to prohibiting discrimination in employment and occupation on the basis of sex. The Committee also requests the Government to indicate the measures adopted or envisaged to amend the other provisions mentioned above so as to bring them into conformity with the Convention.

6. Discrimination on grounds of race or ethnic origin. The Committee notes the report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2004/34, 10 March 2004, paragraphs 96 and 97), according to which, the Batwa, a minority indigenous people, are subject to large-scale acts of discrimination of all kinds by other parts of the population and have no access to education, health and housing. The Committee requests the Government to indicate whether an analysis has been undertaken or is envisaged of the socio-economic situation of the Batwa and, if so, to provide copies of these studies with its next report. It also requests the Government to provide information on any other initiatives adopted or envisaged to eliminate all forms of discrimination based on race or ethnic origin, including against the Batwa, in employment and education.

7. Article 2. National policy. The Committee notes that article 14 of the Constitution provides that the public authorities shall see to the elimination of all forms of discrimination against women and ensure the protection and promotion of their rights. It also notes the National Programme for the Promotion of Congolese Women, which was established in response to the recommendations of the World Conference on Women (Beijing, 1995). The Committee would be grateful if the Government would provide information on the implementation of this programme and on the results achieved in practice through activities to promote equality of opportunity and treatment between men and women in employment and occupation. However, noting that the national programme referred to in the Government’s earlier report is essentially targeted at achieving equality of men and women, the Committee would be grateful if the Government would indicate the measures adopted or envisaged, within the framework of the national policy, to promote compliance with the principles set out in the Convention in relation to the other grounds that it covers, namely race, colour, religion, political opinion, national extraction and social origin.

8. Article 3(a). Cooperation of the social partners. The Committee notes that section 37 of the National Interoccupational Collective Labour Agreement provides that “women shall enjoy the same rights at work as men in accordance with the legal provisions and regulations”. It requests the Government to continue providing information in its next report on the measures adopted to cooperate with the social partners in promoting the acceptance of the national policy of equality of opportunity and treatment in relation to all the grounds of discrimination set forth in the Convention, and the results achieved in practice.

9. Article 3(b). Educational programmes. The Committee again requests the Government to provide information on educational programmes intended to secure the acceptance and observance of the national policy of equality of opportunity and treatment.

10. Article 3(d). Employment in the public service. The Committee notes Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public service. Noting that this Act does not contain any provision prohibiting discrimination in employment and occupation, the Committee requests the Government to provide information in its next report on the manner in which the principles of equality of opportunity and treatment in employment and occupation apply to career members of the public service. Furthermore, the Committee notes that, under section 25(2) of the Act, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee wishes to emphasize that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. It therefore requests the Government to provide information on the measures adopted or envisaged to secure for women employees a period of maternity leave which is additional to annual leave and to bring the national legislation fully into conformity with the provisions of the Convention.

11. Article 3(e). Vocational training. The Committee notes section 17 of Ordinance No. 71/055 of 26 March 1971, respecting vocational training, further training and apprenticeship, under the terms of which “employers shall establish systematic training plans for workers in their service. These plans shall take into account the needs of enterprises for trained personnel, without having the effect of excluding certain categories of workers from training plans”. The Committee would be grateful if the Government would provide information on the application of this provision in practice, as well as indications of the measures taken to promote observance of the principle of the Convention in relation to vocational training and guidance services under the direction of a national authority.

12. Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. The Committee again asks the Government to provide information on the provisions respecting the employment or occupational activity of persons covered by Article 4 of the Convention, and the remedies available to such persons.

13. Article 5. Special measures of protection for women. The Committee notes that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code of Orders of the Minister of Labour and Social Insurance defines the nature of jobs which are prohibited for women. It notes that Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children, prohibits the assignment of women to several types of work. The Committee recalls that, following the 1985 resolution on equal opportunities and equal treatment for men and women in employment, special protective measures for women, which are based on stereotyped perceptions of their capacity and role in society, have been challenged and may give rise to violations of the principle of equality of opportunity and treatment. It requests the Government to envisage re-examining, in consultation with the representatives of employers’ and workers’ organizations, and with women workers, the legislative provisions relating to women to determine whether they are necessary and appropriate to achieve the objective of equality of opportunity and treatment, and to keep it informed of the progress achieved in this respect. Furthermore, noting the Government’s response to CEDAW that the Labour Code’s prohibition of night work by women has been amended and that the draft Code is before the Parliament for adoption (CEDAW/C/COD/Q/5/Add.1, paragraph 23), the Committee looks forward to receiving information on the revised night work provision.

14. Parts IV and V of the report form. Court decisions and application in practice. The Committee requests the Government to provide information in its next report on administrative or judicial decisions relating to cases of discrimination based on the grounds set forth in the Convention. The Committee also requests the Government to provide, where available, reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all fields of vocational training and employment, as well as any information enabling the Committee to assess the manner in which the Convention is applied in practice.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information provided by the Government in its first report on the application of the Convention, including the attached documentation. The Committee also notes the communication of the Confederations of the Trade Unions of Congo, received 14 September 2005, which has been transmitted to the Government. The Committee requests the Government to provide information on the following points in its next report.

1. Article 1(1) of the Convention. Prohibition of discrimination. The Committee notes with interest that the draft Constitution was adopted by the National Assembly in May 2005 and will be subject to referendum in December 2005. It notes that article 13 provides that no national of the Congo may, in relation to education and public services, or in any other area, be subject to any discriminatory measure, whether arising out of the law or an act of the executive authorities, on the grounds of his or her religion, family origin, social condition, residence, political opinion and beliefs, racial, ethnical or tribal belonging or minority or cultural extraction. Furthermore, article 14 provides that the State shall ensure the elimination of all discrimination against women and the protection and promotion of their rights. However, the Committee notes that these constitutional provisions only apply to nationals of the Congo. It recalls that non-nationals cannot be excluded from the scope of application of the Convention and requests the Government to indicate in its next report how non-nationals are protected against discrimination on the grounds set forth in Article 1(1)(a) of the Convention.

2. The Committee notes that the Labour Code of 2002 applies to all employers and workers, with the exception of career members of the State public services regardless, inter alia, of race, sex, civil status, religion, political opinion, national extraction, social origin (section 1). It also notes that section 62 of the Labour Code provides that, among other grounds, race, colour, sex, marital status, family responsibilities, pregnancy, confinement and its consequences, religion, political opinion, national extraction, social origin and ethnic group are not valid reasons for dismissal. In the absence of a provision in the Labour Code explicitly defining and prohibiting direct and indirect discrimination in all fields of employment and occupation, and not only in relation to dismissal, the Committee requests the Government to indicate in its next report the manner in which protection against discrimination is ensured in other areas of employment and occupation, such as access to employment, vocational training and terms and conditions of employment. Furthermore, it hopes that the Government will examine the possibility of amending the Labour Code so as to include a definition and prohibition of discrimination, taking into account the requirements of the Convention.

3. Discrimination on grounds of sex. The Committee notes that a reading of sections 448 and 497 of Act No. 87/010 of 1 August 1987, issuing the Family Code, appears to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. Furthermore, in relation to jobs in the public service, the Committee notes that section 8 of Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public services, and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee wishes to specify that the above provisions constitute discrimination on grounds of sex which are contrary to the principle of equality of opportunity and treatment for men and women workers in employment and occupation, as set out in the Convention. The Committee therefore requests the Government to indicate in its next report the measures adopted or envisaged to amend these provisions so as to bring them into conformity with the principle set out in the Convention.

4. Sexual harassment. The Committee notes sections 73 and 74 of the Labour Code, which prohibit sexual harassment in employment and occupation. It also notes the Government’s statement that the Ministry of Labour and Social Insurance will decide upon approaches to sexual harassment when preparing the order envisaged under section 85 of the Labour Code and when determining the measures for the implementation of Title IV respecting the employment contract, and it requests the Government to provide a copy of this order when it has been adopted. However, noting that the Labour Code does not contain a definition of sexual harassment, the Committee requests the Government to examine the possibility of including such a definition which covers the concepts of "quid pro quo" harassment and a hostile work environment, based on the considerations set out in its general observation of 2002. Also noting that the only remedy available to victims of sexual harassment is to terminate the employment contract for serious misconduct of the employer, the Committee recommends that the Government envisage the adoption of laws or regulations offering additional avenues for redress to alleged victims of sexual harassment, and asks it to keep it informed of progress in this respect.

5. Discrimination on grounds of race or ethnic origin. The Committee notes the report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2004/34, 10 March 2004, paragraphs 96 and 97), according to which the Batwa, a minority indigenous people, are subject to large-scale acts of discrimination of all kinds by the population and have no access to education, health and housing. The Committee requests the Government to indicate whether an analysis has been undertaken or is envisaged of the socio-economic situation of the Batwa and, if so, to provide copies of these studies with its next report. It also requests the Government to provide information on any other initiatives adopted or envisaged to eliminate all forms of discrimination based on race or ethnic origin, including against the Batwa, in employment and education.

6. Article 2. National policy. The Committee notes with interest that article 14 of the draft Constitution provides that the public authorities shall ensure the elimination of all forms of discrimination against women and shall protect and promote their rights. It also notes the National Programme for the Promotion of Congolese Women, which was established in response to the recommendations of the World Conference on Women (Beijing, 1995). The Committee would be grateful if the Government would provide information on the implementation of this Programme and on the results achieved in practice through activities to promote equality of opportunity and treatment between men and women in employment and occupation. However, noting that the National Programme referred to in the Government’s report is essentially targeted at achieving equality of men and women, the Committee would be grateful if the Government would indicate the measures adopted or envisaged, within the framework of the national policy, to promote compliance with the principles set out in the Convention in relation to the other grounds that it covers, namely race, colour, religion, political opinion, national extraction and social origin.

7. Article 3(a). Cooperation of the social partners. The Committee notes that section 37 of the National Interoccupational Collective Labour Agreement provides that "women shall enjoy the same rights at work as men in accordance with the legal provisions and regulations". It requests the Government to continue providing information in its next report on the measures adopted to cooperate with the social partners in promoting the acceptance of the national policy of equality of opportunity and treatment in relation to all the grounds of discrimination set forth in the Convention, and the results achieved in practice.

8. Article 3(b). Educational programmes. In the absence of information on this point in the Government’s report, the Committee requests the Government to provide information on educational programmes intended to secure the acceptance and observance of the national policy of equality of opportunity and treatment.

9. Article 3(d). Employment in the public sector. The Committee notes Act No. 81/003 of 17 July 1981, issuing the conditions of service of career members of the State public services. Noting that this Act does not contain any provision prohibiting discrimination in employment and occupation, the Committee requests the Government to provide information in its next report on the manner in which the principles of equality of opportunity and treatment in employment and occupation apply to career members of the public services. Furthermore, the Committee notes that, under section 25(2) of the Act, women employees are entitled to maternity leave of 14 consecutive weeks. However, where a woman has taken maternity leave, she can no longer during the same year benefit from her right to annual leave. The Committee wishes to emphasize that a restriction of this nature constitutes discrimination against women employees as it amounts in practice to substituting maternity leave for annual leave. It therefore requests the Government to provide information on the measures adopted or envisaged to secure for women employees a period of maternity leave which is additional to annual leave and to bring the national legislation fully into conformity with the provisions of the Convention.

10. Article 3(e). Vocational training. The Committee notes section 17 of Ordinance No. 71/055 of 26 March 1971, respecting vocational training, further training and apprenticeship, under the terms of which "employers shall establish systematic training plans for workers in their service. These plans shall take into account the needs of enterprises for trained personnel, without having the effect of excluding certain categories of workers from training plans." The Committee would be grateful if the Government would provide information on the application of this provision in practice, as well as indications of the measures taken to promote observance of the principle of the Convention in relation to vocational training and guidance services under the direction of a national authority.

11. Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. In the absence of a reply from the Government on this point, the Committee requests it to provide information on the provisions respecting the employment or occupational activity of persons covered by Article 4 of the Convention, and the remedies available to such persons.

12. Article 5. Special measures of protection for women. The Committee notes that section 137 of the Labour Code provides that women may not be maintained in jobs acknowledged to be beyond their strength and shall be assigned to suitable jobs, and that section 128 of the Code of Orders of the Minister of Labour and Social Insurance defines the nature of jobs which are prohibited for women. It notes that Ministerial Order No. 68/13 of 17 May 1968, respecting the working conditions of women and children, prohibits the assignment of women to several types of work. The Committee recalls that, following the 1985 Resolution on equal opportunities and equal treatment for men and women in employment, special protection measures for women, which are based on stereotyped perceptions of their capacity and role in society, have been challenged and may give rise to violations of the principle of equality of opportunity and treatment. It requests the Government to envisage re-examining, in consultation with the representatives of employers’ and workers’ organizations, and with women workers, the legislative provisions relating to women to determine whether they are necessary and appropriate to achieve the objective of equality of opportunity and treatment, and to keep it informed of the progress achieved in this respect.

13. Parts IV and V of the report form. Court decisions and application in practice. The Committee requests the Government to provide information in its next report on administrative or judicial decisions relating to cases of discrimination based on the grounds set forth in the Convention. The Committee also requests the Government to provide, where available, reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all fields of vocational training and employment, as well as any information enabling the Committee to assess the manner in which the Convention is applied in practice.