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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Articles 1 and 2 of the Convention. Legislation. The Committee previously noted the various legislative amendments to the Law on Gender Equality of 2007 and the Law on the Prohibition of Discrimination of 2010 (amended in 2014 and 2017). In this regard, the Committee notes the Government’s indication, in its report, that the amendments to the Law on Gender Equality 2007 extended the scope of sanctions concerning gender discrimination and violations of the principle of equal treatment of men and women in certain areas of life, including discrimination against women due to pregnancy. The Government indicates that in 2018, 146 cases were completed and nine were transferred to 2019, but the Committee notes that no detail is given concerning to number of cases dealing specifically with discrimination in employment and occupation nor on the findings of the courts and the sanctions imposed. Further, the, the Committee takes notes of the information provided by the Government, in its report, on the application in practice of the legislation, including on the number of cases examined by the courts in 2017 and 2018. However, the Committee notes, from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), that despite the solid legislative framework in place, concerns remain about the limited impact of the legislation which may point to a lack of implementation and of the political will to prioritize gender equality and non-discrimination, as well as to the inadequacy of the capacity-building conducted on gender equality and on the prohibition of discrimination on the basis of sex. The CEDAW also expresses concern about the small number of complaints about discrimination on the basis of sex or gender filed with the Protector of Human Rights and Freedoms and the absence of any such complaints filed with the Supreme Court (CEDAW/C/MNE/CO/2, 24 July 2017, paragraph 10). The Committee asks the Government to step up its efforts in ensuring the full implementation of the legislative framework on the prohibition of discrimination, especially with regard to women’s right to non-discrimination in employment and occupation, and to provide information on the measures taken in this regard.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee recalls that the Law on the Prohibition of Discrimination of 2010 (section 7(2)), the Law on Gender Equality of 2007 (section 7(8)) and the Labour Act of 2008 (section 8(3)) all provide different definitions of sexual harassment. The Committee asked the Government to examine the possibility of harmonizing these definitions. It notes the Government’s indication that, in cooperation with the ILO, it has been working on a draft Labour Law defining and prohibiting sexual harassment at work and in all areas of employment. The Committee notes the adoption and enactment of the new Labour Law in January 2020, and notes that section 10(1) prohibits sexual harassment at work and in relation to work “regarding all aspects of employment, i.e. recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship”. Section 10(3) defines sexual harassment as constituting “any unwanted verbal, non-verbal or physical conduct of a sexual nature intended to or actually undermining the dignity of a person seeking employment, as well as an employed person, particularly when such behavior causes fear or creates a hostile, humiliating, intimidating, degrading or offensive environment”. The Committee notes with regret that while section 10(3) defines hostile work environment sexual harassment, the definition does not include explicitly quid pro quo sexual harassment, that is cases where a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job. Further, the Government indicates that no motions concerning sexual harassment were submitted to the Agency for the Peaceful Resolution of Labour Disputes. With regard to court cases, the Government reports on only one case of mobbing in relation to sexual harassment and informs the Committee that mobbing is the only type of dispute categorized when registering court cases in the information system. The Government states that a review of the judicial information system is underway and, once completed, data on the number of cases regarding sexual harassment will be available. The Committee asks the Government to: (i) consider amending the new Labour Law to also define and prohibit explicitly quid pro quo sexual harassment; (ii) indicate whether section 7(2) of the Law on the Prohibition of Discrimination of 2010 and section 7(8) of the Law on Gender Equality of 2007 are still in force; and (iii) consider harmonizing the definitions of sexual harassment throughout its legislative framework. The Committee also reiterates its request to the Government to: (i) report on steps taken at the national level to actively prevent and address sexual harassment at work, including any awareness-raising activities; and (ii) provide information on any cooperation with workers’ and employers’ organizations in this regard. Finally, welcoming the Government’s initiative to modernize the judicial information system, the Committee hopes that the Government will soon be in a position to provide more detailed information on the number and nature of cases brought to the attention of the competent authorities relating to sexual harassment, and their outcome.

Article 1(2). Inherent requirements of the job. The Committee recalls that section 2 of the Law on the Prohibition of Discrimination of 2010, as amended, allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the act, action, or omission are objectively and reasonably justified by a legitimate purpose. The Committee notes the Government’s indication that a new section 2(a) was introduced to the Law on the Prohibition of Discrimination of 2010, which provides for exceptions to the general prohibition of direct and indirect discrimination in certain circumstances, detailed in subparagraphs (1) to (7). In subparagraph (1), it will not be considered discrimination “when such a treatment is prescribed by the law in order to preserve health, safety of citizens, maintain public order and peace, prevent criminal offences and protect rights and freedoms of others, if the used means are appropriate and necessary to achieve some of those objectives in a democratic society and are proportionate to the objective that should be achieved with such measures”. Subparagraph (7) considered that a difference made “on the grounds of citizenship in accordance with special regulations” does not amount to discrimination. Section 2(a) specifies that for subparagraphs (1) and (7), treatment not be deemed to be discrimination, “shall be determined in proportion to the objective and purpose for which they are determined, if the means for achieving that objective are proportionate and necessary”. The Committee notes, that the new section 2(a) of the Law on the Prohibition of Discrimination of 2010 did not introduce significant changes from the previous provision. The Committee therefore once again recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and that any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). Therefore, in order to assess whether Article 1(2) of the Convention is applied in a restrictive manner, the Committee once again asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2(a) of the Law on the Prohibition of Discrimination of 2010, as amended, such as examples of cases in which these exceptions have been used.

Article 2. Equality of opportunity for men and women. In its previous comment, the Committee requested detailed information on the concrete steps taken within the framework of the Action Plan on Gender Equality (2017–21) and on the activities of the new National Gender Equality Council. It also asked the Government to provide information on the implementation of the Strategy for the Development of Women’s Entrepreneurship, and on the progress made. According to the Government, an analysis of the implementation of the Action Plan on Gender Equality 2017–21 shows that about 70 per cent of the planned measures have been implemented fully or continuously, which indicates that there is a positive trend in the implementation of gender equality policies. The Committee notes the Government acknowledgement that, although institutional mechanisms for gender equality in Montenegro have been improved in the last five years: (1) women continue to face various forms of discrimination in the political, social and economic spheres; and (2) there is still a small number of complaints on discrimination based on sex and gender despite the solid legislative framework of Montenegro for the elimination of discrimination against women. In addition, the Government states that municipalities do not have enough resources to establish their own structures to adopt and effectively implement local plans for achieving gender equality. In light of the above, the Committee wishes to recall the importance of regularly monitoring and assessing the results achieved within the framework of the national equality policy with a view to reviewing and adjusting existing measures and strategies and identifying any need for greater coordination between measures and strategies and between competent bodies in order to streamline interventions. The Committee asks the Government to: (i) continue its efforts in the implementation of the Action Plan on Gender Equality (2017–21) and the Strategy for the Development of Women’s Entrepreneurship; and (ii) provide information on the steps taken to this end. It also asks the Government to undertake an evaluation of the impact of the measures, taken under both the Action Plan and the Strategy, to improve women’s equal access to employment and occupation. Noting that the Government has not provided information in this regard, the Committee once again asks the Government to provide information on the activities of the National Gender Equality Council.

Articles 2 and 3. Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that according to the Government, Roma and Egyptian people went from representing 3.5 per cent of the unemployed in 2016, to 1.9 per cent in 2018. The Committee takes notes of the detailed Action Plan for the implementation of the Strategy for the social inclusion of Roma and Egyptians in Montenegro, including the appointment of associates, to act as mediators in the communities, to foster better awareness of these populations on their right to work, and the importance and manner of registering for unemployment. The Committee notes, however, from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, that Roma and Egyptians are over-represented in informal employment and unskilled jobs, and their attendance rate in preschool, primary and secondary education remain low compared to the rest of the population (CERD/C/MNE/CO/4-6, 19 September 2018, paragraphs 14 and 16). The Committee asks the Government to: (i) continue its efforts in ensuring that Roma and Egyptians enjoy equal opportunities in all aspects of employment and occupation; and (ii) undertake an evaluation of the impact of the measures taken under the Strategy for social inclusion of Roma and Egyptians in Montenegro for the period 2016–20, in the labour market for Roma and Egyptian men and women, and to provide information to this end. Noting that the Government has not replied to its request in this regard, the Committee once again asks it to provide information on the application in practice of section 17 of the Law on the Prohibition of Discrimination of 2010, as amended, including on any cases brought before the competent authorities involving the Roma and Egyptian populations.

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

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 5. Special measures. Restrictions on women’s employment. The Committee recalls that, for a number of years, it had been drawing the Government’s attention to the fact that section 104 of Labour Law No. 49/08, which provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have a detrimental effect on and an increased risk for [her] health and life”, may give rise to violations of the principle of equality of opportunity and treatment. The Committee notes with interest that the new Labour Law has removed this restriction on women’s employment.

Enforcement. The Committee notes the information provided by the Government on the cases registered by the labour inspectorate between 2016 and 2019. It notes the low number of cases regarding discrimination and recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the 2012 General Survey on the fundamental Conventions, paragraphs 870 and 871). The Committee therefore encourages the Government to raise awareness of the relevant legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination. It also asks the Government to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Committee further asks the Government to continue providing information on the number and nature of complaints which relate specifically to discrimination based on the grounds set out in the national legislation, the sanctions imposed and the remedies provided.

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

Articles 1 and 2 of the Convention. Legislation. The Committee previously noted the various legislative amendments to the Law on Gender Equality of 2007 and the Law on the Prohibition of Discrimination of 2010 (amended in 2014 and 2017). In this regard, the Committee notes the Government’s indication, in its report, that the amendments to the Law on Gender Equality 2007 extended the scope of sanctions concerning gender discrimination and violations of the principle of equal treatment of men and women in certain areas of life, including discrimination against women due to pregnancy. The Government indicates that in 2018, 146 cases were completed and nine were transferred to 2019, but the Committee notes that no detail is given concerning to number of cases dealing specifically with discrimination in employment and occupation nor on the findings of the courts and the sanctions imposed. Further, the, the Committee takes notes of the information provided by the Government, in its report, on the application in practice of the legislation, including on the number of cases examined by the courts in 2017 and 2018. However, the Committee notes, from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), that despite the solid legislative framework in place, concerns remain about the limited impact of the legislation which may point to a lack of implementation and of the political will to prioritize gender equality and non-discrimination, as well as to the inadequacy of the capacity-building conducted on gender equality and on the prohibition of discrimination on the basis of sex. The CEDAW also expresses concern about the small number of complaints about discrimination on the basis of sex or gender filed with the Protector of Human Rights and Freedoms and the absence of any such complaints filed with the Supreme Court (CEDAW/C/MNE/CO/2, 24 July 2017, paragraph 10). The Committee asks the Government to step up its efforts in ensuring the full implementation of the legislative framework on the prohibition of discrimination, especially with regard to women’s right to non-discrimination in employment and occupation, and to provide information on the measures taken in this regard.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee recalls that the Law on the Prohibition of Discrimination of 2010 (section 7(2)), the Law on Gender Equality of 2007 (section 7(8)) and the Labour Act of 2008 (section 8(3)) all provide different definitions of sexual harassment. The Committee asked the Government to examine the possibility of harmonizing these definitions. It notes the Government’s indication that, in cooperation with the ILO, it has been working on a draft Labour Law defining and prohibiting sexual harassment at work and in all areas of employment. The Committee notes the adoption and enactment of the new Labour Law in January 2020, and notes that section 10(1) prohibits sexual harassment at work and in relation to work “regarding all aspects of employment, i.e. recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship”. Section 10(3) defines sexual harassment as constituting “any unwanted verbal, non-verbal or physical conduct of a sexual nature intended to or actually undermining the dignity of a person seeking employment, as well as an employed person, particularly when such behavior causes fear or creates a hostile, humiliating, intimidating, degrading or offensive environment”. The Committee notes with regret that while section 10(3) defines hostile work environment sexual harassment, the definition does not include explicitly quid pro quo sexual harassment, that is cases where a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job. Further, the Government indicates that no motions concerning sexual harassment were submitted to the Agency for the Peaceful Resolution of Labour Disputes. With regard to court cases, the Government reports on only one case of mobbing in relation to sexual harassment, and informs the Committee that mobbing is the only type of dispute categorized when registering court cases in the information system. The Government states that a review of the judicial information system is underway and, once completed, data on the number of cases regarding sexual harassment will be available. The Committee asks the Government to: (i) consider amending the new Labour Law to also define and prohibit explicitly quid pro quo sexual harassment; (ii) indicate whether section 7(2) of the Law on the Prohibition of Discrimination of 2010 and section 7(8) of the Law on Gender Equality of 2007 are still in force; and (iii) consider harmonizing the definitions of sexual harassment throughout its legislative framework. The Committee also reiterates its request to the Government to: (i) report on steps taken at the national level to actively prevent and address sexual harassment at work, including any awareness-raising activities; and (ii) provide information on any cooperation with workers’ and employers’ organizations in this regard. Finally, welcoming the Government’s initiative to modernize the judicial information system, the Committee hopes that the Government will soon be in a position to provide more detailed information on the number and nature of cases brought to the attention of the competent authorities relating to sexual harassment, and their outcome.

Article 1(2). Inherent requirements of the job. The Committee recalls that section 2 of the Law on the Prohibition of Discrimination of 2010, as amended, allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the act, action, or omission are objectively and reasonably justified by a legitimate purpose. The Committee notes the Government’s indication that a new section 2(a) was introduced to the Law on the Prohibition of Discrimination of 2010, which provides for exceptions to the general prohibition of direct and indirect discrimination in certain circumstances, detailed in subparagraphs (1) to (7). In subparagraph (1), it will not be considered discrimination “when such a treatment is prescribed by the law in order to preserve health, safety of citizens, maintain public order and peace, prevent criminal offences and protect rights and freedoms of others, if the used means are appropriate and necessary to achieve some of those objectives in a democratic society and are proportionate to the objective that should be achieved with such measures”. Subparagraph (7) considered that a difference made “on the grounds of citizenship in accordance with special regulations” does not amount to discrimination. Section 2(a) specifies that for subparagraphs (1) and (7), treatment not be deemed to be discrimination, “shall be determined in proportion to the objective and purpose for which they are determined, if the means for achieving that objective are proportionate and necessary”. The Committee notes, that the new section 2(a) of the Law on the Prohibition of Discrimination of 2010 did not introduce significant changes from the previous provision. The Committee therefore once again recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and that any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). Therefore, in order to assess whether Article 1(2) of the Convention is applied in a restrictive manner, the Committee once again asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2(a) of the Law on the Prohibition of Discrimination of 2010, as amended, such as examples of cases in which these exceptions have been used.

Article 2. Equality of opportunity for men and women. In its previous comment, the Committee requested detailed information on the concrete steps taken within the framework of the Action Plan on Gender Equality (2017–21) and on the activities of the new National Gender Equality Council. It also asked the Government to provide information on the implementation of the Strategy for the Development of Women’s Entrepreneurship, and on the progress made. According to the Government, an analysis of the implementation of the Action Plan on Gender Equality 2017–21 shows that about 70 per cent of the planned measures have been implemented fully or continuously, which indicates that there is a positive trend in the implementation of gender equality policies. The Committee notes the Government acknowledgement that, although institutional mechanisms for gender equality in Montenegro have been improved in the last five years: (1) women continue to face various forms of discrimination in the political, social and economic spheres; and (2) there is still a small number of complaints on discrimination based on sex and gender despite the solid legislative framework of Montenegro for the elimination of discrimination against women. In addition, the Government states that municipalities do not have enough resources to establish their own structures to adopt and effectively implement local plans for achieving gender equality. In light of the above, the Committee wishes to recall the importance of regularly monitoring and assessing the results achieved within the framework of the national equality policy with a view to reviewing and adjusting existing measures and strategies and identifying any need for greater coordination between measures and strategies and between competent bodies in order to streamline interventions. The Committee asks the Government to: (i) continue its efforts in the implementation of the Action Plan on Gender Equality (2017–21) and the Strategy for the Development of Women’s Entrepreneurship; and (ii) provide information on the steps taken to this end. It also asks the Government to undertake an evaluation of the impact of the measures, taken under both the Action Plan and the Strategy, to improve women’s equal access to employment and occupation. Noting that the Government has not provided information in this regard, the Committee once again asks the Government to provide information on the activities of the National Gender Equality Council.

Articles 2 and 3. Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that according to the Government, Roma and Egyptian people went from representing 3.5 per cent of the unemployed in 2016, to 1.9 per cent in 2018. The Committee takes notes of the detailed Action Plan for the implementation of the Strategy for the social inclusion of Roma and Egyptians in Montenegro, including the appointment of associates, to act as mediators in the communities, to foster better awareness of these populations on their right to work, and the importance and manner of registering for unemployment. The Committee notes, however, from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, that Roma and Egyptians are over-represented in informal employment and unskilled jobs, and their attendance rate in preschool, primary and secondary education remain low compared to the rest of the population (CERD/C/MNE/CO/4-6, 19 September 2018, paragraphs 14 and 16). The Committee asks the Government to: (i) continue its efforts in ensuring that Roma and Egyptians enjoy equal opportunities in all aspects of employment and occupation; and (ii) undertake an evaluation of the impact of the measures taken under the Strategy for social inclusion of Roma and Egyptians in Montenegro for the period 2016–20, in the labour market for Roma and Egyptian men and women, and to provide information to this end. Noting that the Government has not replied to its request in this regard, the Committee once again asks it to provide information on the application in practice of section 17 of the Law on the Prohibition of Discrimination of 2010, as amended, including on any cases brought before the competent authorities involving the Roma and Egyptian populations.

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

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 5. Special measures. Restrictions on women’s employment. The Committee recalls that, for a number of years, it had been drawing the Government’s attention to the fact that section 104 of Labour Law No. 49/08, which provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have a detrimental effect on and an increased risk for [her] health and life”, may give rise to violations of the principle of equality of opportunity and treatment. The Committee notes with interest that the new Labour Law has removed this restriction on women’s employment.

Enforcement. The Committee notes the information provided by the Government on the cases registered by the labour inspectorate between 2016 and 2019. It notes the low number of cases regarding discrimination and recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the 2012 General Survey on the fundamental Conventions, paragraphs 870 and 871). The Committee therefore encourages the Government to raise awareness of the relevant legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination. It also asks the Government to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Committee further asks the Government to continue providing information on the number and nature of complaints which relate specifically to discrimination based on the grounds set out in the national legislation, the sanctions imposed and the remedies provided.

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

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

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

Article 1(2). Inherent requirements of the job. In its previous request, the Committee recalled that section 2 of the Law on the Prohibition of Discrimination of 2010 allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the act, action, or omission are objectively and reasonably justified by a legitimate purpose. The Committee also noted that, pursuant to section 16, which prohibits discrimination in employment, exceptions were also permitted in cases where the distinction, exclusion or preference with regard to a particular job relates to personal characteristics that represent a real and decisive condition for performing the work, if the purpose to be achieved is justified. The Committee notes from the Government’s report that the 2014 amendments to the Law removed such exceptions only with regard to the prohibition of direct discrimination, and that section 16 was amended to require an additional element if the exception is to apply, namely that “the condition is proportionate”. Noting that the 2017 amendments to the Law did not make any substantive changes to these exceptions, the Committee wishes to recall that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and that any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). The Committee therefore once again asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2(3) and 16 of the Law on the Prohibition of Discrimination of 2010, as amended, including examples of cases in which these exceptions have been used.

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

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

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

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

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

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

Article 1 of the Convention. Harassment. The Committee welcomes the inclusion of the provisions on harassment in the Anti-Discrimination Law, 2010. The Committee notes that section 7 of the Law defines and prohibits general “harassment”, while section 8 defines and prohibits “insults, depreciation and harassment” in the workplace (“mobbing”). According to section 8, “mobbing” occurs when “one or more persons, systematically, over a longer period of time, mentally abuse or humiliate another person by way of insults, depreciation, harassment and other activities, bringing that person in an unequal position on any ground referred to in [section 2 of] this Law, which is aimed to harm his/her personal reputation, honour, human dignity and integrity and can cause adverse effects of mental, psychosomatic and social nature or compromise the professional future of the person”. In this connection, the Committee notes the Government’s indication that, in spite of the broad acceptance of the Anti-Discrimination Law by the international community, further amendments were still necessary in order to ensure its full compliance with international standards, and therefore a Bill on amendments to the 2010 Law has been elaborated and submitted to Parliament for adoption. The Government also indicates that some of the most significant changes addressed in the Bill on amendments to the Anti-Discrimination Law refer, among others, to provisions covering sexual harassment. Noting that sexual harassment is not clearly defined under section 8 of the Anti-Discrimination Law, 2010, the Committee asks the Government to take the opportunity of the current legislative reform process to adopt a clear definition of and to prohibit both quid pro quo and hostile environment sexual harassment, including by co-workers, and requests it to provide information on the progress made in this regard. The Committee also reiterates its request for information on the practical measures taken to prevent and address sexual harassment at work, as well as information on whether any cases of sexual harassment have been brought under section 8(1) and (3) of Labour Law No. 49/08, and on the outcome thereof. Please also provide information on any cases of harassment or mobbing brought pursuant to the Anti-Discrimination Law, and the results thereof.

Article 1(2). Inherent requirements of the job. The Committee notes that section 2 of the Anti-Discrimination Law, 2010, allows for exceptions to the general prohibition of direct and indirect discrimination in cases where the “act, action, or failure to act are objectively and reasonably justified by a legitimate purpose”. Pursuant to section 16, which prohibits discrimination in employment, exceptions are also permitted in cases where the distinction, exclusion or preference with regard to a particular job relates to personal characteristics that “represent a real and decisive condition for performing the work”. The Committee recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see General Survey on the fundamental Conventions, 2012, paragraphs 827 and 828). The Committee therefore asks the Government to provide information on the interpretation and application of the exceptions provided for in sections 2 and 16 of the Anti-Discrimination Law, 2010, including examples of cases in which these exceptions have been used.

Article 2. Promotion of gender equality. The Committee notes the information provided by the Government on the measures taken with a view to promoting equality of opportunity and treatment between men and women. It notes, in particular, the adoption of the second Action Plan for Achieving Gender Equality (2013–17), which sets out time-bound goals, specific action and the bodies responsible for each activity related to the implementation of gender equality policies. In order to promote women’s employment and eliminate all forms of discrimination against women in the labour market, the plan proposes a multifaceted approach to reduce unemployment and the gender pay gap; encourage female entrepreneurship and self-employment; ensure the effective implementation of laws; promote existing complaint mechanisms; and to help men and women reconcile work and family responsibilities. The Committee also notes the information provided by the Government on the training activities targeted at labour inspectors, civil servants, local employees in the education sector, and members of the judiciary with a view to building their capacity on gender equality issues. Finally, the Committee notes the statistical information on the employment and unemployment rate of men and women, as well as the sex-disaggregated data provided in the document “Women and Men in Montenegro”, published biennially by the Montenegro Statistical Office. The Committee asks the Government to continue to provide information on the measures taken within the framework of the Action Plan on Gender Equality (2013–17), or otherwise, to promote equality of opportunity and treatment between men and women in employment and occupation, and to improve women’s access to the labour market, including detailed information on the impact of such measures and the concrete results achieved.

Promotion of equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the information provided by the Government on the measures taken to improve Roma and Egyptian communities’ access to employment and training. In this regard, the Committee notes the Strategy for the Improvement of the Position of Roma and Egyptian (RE) Populations in Montenegro (2012–16), as well as the Employer Survey (2011/12) conducted by the National Employment Agency with a view to assessing employers’ perceptions and expectations with regard to the recruitment of members of the RE communities, and to raise employers’ awareness of equality issues in this respect. According to the Government, 19 per cent of respondents indicated that they would be willing to hire workers from the RE communities, compared to only 5 per cent in the 2010 survey. The Committee asks the Government to continue to take concrete measures to foster equal opportunities of national and ethnic minorities, particularly with respect to access to employment and education, and to pursue its efforts to assess and monitor the progress made in this respect. It also asks the Government to provide information on the outcome of the Strategy for the Improvement of the Position of Roma and Egyptian Populations for the period 2012–16, including statistical information concerning the situation of RE people in the labour market.

Article 5. Special measures. The Committee notes the adoption of the “Decree on subsidies for the employment of certain categories of unemployed persons” on 26 January 2012. The Decree, which is applicable until 31 December 2014, establishes incentives for the recruitment of persons registered with the National Employment Agency who experience labour market disadvantages due to discrimination, in particular workers from RE populations. The Committee notes further the Government’s indication that the Human Resources Management Authority is responsible for monitoring the implementation of measures aimed at achieving proportional representation of ethnic minorities and workers with disabilities in the public sector. The Committee asks the Government to provide information on the application in practice of the Decree of 26 January 2012, including on the results achieved and the number of persons employed. The Committee also requests the Government to provide detailed information on the affirmative action measures put in place to increase the opportunities of ethnic or national minorities and workers with disabilities with regard to vocational training and employment, both in the public and private sectors.

Parts III and IV of the report form. Enforcement. The Committee welcomes the initiative of the Department of Labour Inspection and the Ministry of Human and Minority Rights to collect data, disaggregated by sex, from the monthly reports of the labour inspectorate. In this connection, the Committee notes the information provided by the Government on the number of cases brought before the labour inspectorate between January and June 2013. The Committee nevertheless points out that it remains unclear whether cases of discrimination based on the various grounds provided in the national legislation have been captured by these statistics. The Committee therefore requests the Government to provide information on the number and nature of cases addressed by labour inspectors which relate specifically to complaints of discrimination based on the grounds provided in the national legislation, the sanctions imposed and the remedies provided. Please also provide information on the activities of the Protector of Human Rights and Freedoms, the Ministry for Human and Minority Rights Protection, the Republic Council for Protection of Rights of Minorities and Ethnic Groups and the Council of Human Rights and Freedoms to promote and ensure the observance of the national legislation on non-discrimination in employment and occupation.

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

Article 1 of the Convention. Legislation. The Committee notes with interest the adoption of the Law on the prohibition of discrimination (Anti-Discrimination Law) on 28 July 2010, which defines and prohibits direct and indirect discrimination on the grounds of race, colour, national affiliation, social or ethnic origin, affiliation to a national minority, language, religion, political opinion, gender, gender identity, sexual orientation, health status, disability, age, financial status, marital or family status, membership of a group or assumed membership of a group, political party or other organization, as well as other personal characteristics (section 2), thus covering all the grounds enumerated in Article 1(1)(a) of the Convention, as well as a number of additional grounds pursuant to Article 1(1)(b). According to section 16, discrimination in employment includes, in addition to the cases stipulated under the laws governing labour and employment, payment of unequal wages or remuneration for work of equal value based on any of the grounds referred to in section 2. Section 20 establishes a category of “grave forms of discrimination”, which include multiple discrimination and repeated and extended discrimination. The Anti-Discrimination Law also contains provisions on court proceedings and the role of inspection, and establishes penalties for acts of discrimination. The Committee notes further that the 2010 Law broadens the scope of the competencies of the Protector of Human Rights and Freedoms (Ombudsperson), and that the Ombudsperson’s mandate is further regulated by a specific law, adopted on 24 July 2011. The Committee asks the Government to provide information on the application in practice of the Anti-Discrimination Law of 2010, and on the measures taken, in cooperation with the social partners, to promote and ensure the observance of the national legislation on non-discrimination, and to promote equality in employment and occupation.

Restrictions on women’s employment. The Committee recalls its previous comments in which it noted that section 104 of Labour Law No. 49/08, which provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have detrimental effect on and an increased risk for [her] health and life”, may give rise to violations of the principle of equality of opportunity and treatment. The Committee draws the Government’s attention to the fact that protective measures for women should be limited to the protection of maternity in the strict sense, and that 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 (see General Survey on the fundamental Conventions, 2012, paragraphs 838–840). The Committee once again asks the Government to take the necessary measures to revise section 104 of Labour Law No. 49/08 with a view to ensuring that restrictions on women’s employment are limited to maternity in the strict sense, and to provide information on the progress made in this regard.

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

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

Legislation on discrimination. The Committee notes that the Law on the prohibition of discrimination in Montenegro has been submitted to Parliament for adoption, and would be grateful to receive a copy of the Law once it is adopted. Recalling that section 5 of Labour Law No. 49/08 prohibits direct and indirect discrimination based on language, age, pregnancy, health state, marital status, family duties, sexual orientation, material status, or some other personal characteristics, the Committee reiterates its request to the Government to continue to provide information on the measures taken to address discrimination in practice on these grounds.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes that the unemployment rate of women in June 2010 was 12.73 per cent compared to an unemployment rate of 11.67 per cent for men. The Committee notes the Plan of activities for achieving gender equality in Montenegro (2008–12), and the information in the Government’s report on the programmes aimed at promoting access to the labour market, particularly for those who are unemployed, and the number of women participating in these programmes. It notes the activities of the National Employment Agency to promote employment of trainees with high professional qualifications, and the programmes on self-employment, as well as the campaign aimed at removing cultural and social barriers for men and women from marginalized groups with a view to providing them with equal opportunities to work in all sectors. The Committee asks the Government to continue to provide statistical information, disaggregated by sex, on the employment and unemployment rate of men and women, as well as on the distribution of men and women in the various occupations and sectors of the economy, in the public and private sectors. Please also continue to provide information on the implementation of the Law on Gender Equality, No. 46/07, and the Plan for achieving gender equality, including measures to promote participation of men and women in a wide range of occupations and training programmes, and information on the results achieved through such action.

Sexual harassment. The Committee refers to its general observation of 2002 and reiterates its request to the Government to provide information on the practical measures taken to prevent and address sexual harassment at work, as well as information on whether any cases of sexual harassment have been brought under section 8(1) and (3) of Labour Law No. 49/08, and on the outcome thereof.

Employment restrictions for women. The Committee recalls section 104 of Labour Law No. 49/08, which provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have detrimental effect on and an increased risk for [her] health and life”. The Government states that these provisions are of an imperative nature and subject to sanctions pursuant to section 127(1), (26) and (27) of the Law. The Committee draws the attention of the Government to the importance of adopting measures aimed at protecting the occupational safety and health of both men and women workers, and that restrictions on women’s employment should be limited to maternity in the strict sense and to special arrangements for pregnant and nursing women. Special protective measures for women which are based on stereotyped perceptions regarding their capacity and role in society give rise to violations of the principle of equality of opportunity and treatment, and should be repealed. The Committee also refers to its direct requests of 2009 on the Underground Work (Women) Convention, 1935 (No. 45), and on the Night Work (Women) Convention (Revised), 1948 (No. 89). The Committee asks the Government to revise section 104 of Labour Law No. 49/08 with a view to ensuring that restrictions on women’s employment be limited to maternity in the strict sense and to special arrangements for pregnant and nursing women. Please provide information on the progress in this regard.

Equality of opportunity and treatment with respect to national and ethnic minorities. The Committee notes the statistics on the different population groups based on national origin, religion and language, indicating that in 2003 the majority of the population is either of Muslim (17.74 per cent), or orthodox faith (74.28 per cent), and of Montenegrin (43.16 per cent), Serbian (31.99 per cent), Albanian (5.03 per cent) and Bosnian (7.77 per cent) national origin. Roma and Egyptians represented respectively 0.42 and 0.04 per cent of the population. It also notes from the Government’s report that the Roma, Ashkali and Egyptian communities face the highest level of poverty and unemployment and that some of the important obstacles in the area of employment are related to lack of education and educational opportunities, and discrimination of the Roma by non-Roma and employers. Roma women are doubly discriminated against with respect to access to employment. The Committee also notes that the lack of a strategy of working with vulnerable groups, the relatively small share of social partnership responsible for addressing employment of the Roma, traditional values among the Roma, and resistance to the acceptance of the Roma in the working environment, have been identified as some of the causes of the difficult employment situation of the Roma population. The Committee recalls the Action Plan to implement the project on the Decade of Roma Inclusion, 2005–15, and the Strategy for the Improvement of the Position of Roma, Ashkali and Egyptian Populations (RAE) in Montenegro (2008–12). The Committee asks the Government to provide information on the specific measures taken to address discrimination against national and ethnic minorities, in particular Roma men and women, in employment and education, including educational and awareness-raising programmes about their equal rights and opportunities in the labour market. Please also provide information on the implementation of the Law on Minority Rights and Freedoms.

Article 3(a). Cooperation with employers’ and workers’ organizations and other relevant bodies. The Committee reiterates its request to the Government to provide further information on the specific activities of the Protector of Human Rights and Freedoms, the Ministry for Human and Minority Rights Protection, the Republic Council for Protection of Rights of Minorities and Ethnic Groups and the Council of Human Rights and Freedoms to give effect to the principles of the Convention. Please also provide further details of the specific measures taken to cooperate with the employers’ and workers’ organizations to promote and ensure the observance of the national legislation and policies on equality in employment and occupation.

Employment, vocational training and guidance and placement services under the national authority. Article 3(d) and (e). The Committee notes from the Government’s report that the Employment Agency considers members of the Roma, Ashkali and Egyptian (RAE) communities as “difficult to be employed persons” due to their extremely high unemployment and very low education levels, poor social and economic situation, prejudices against them and discrimination by employers, and lack of integration in society. It notes that in June 2010, 1,480 Roma were registered with the Employment Agency (47.29 per cent women and 52.71 per men), which represents only 4.6 per cent of the total number of registered persons. It also appears that few Roma women are responding to the measures offered under the Action Plan of the Employment Agency due to early marriage, certain traditional values, and family responsibilities. A survey on the visibility of the Roma in the labour market (2006) on working-age Roma not registered with the Employment Agency indicated, however, that 60 per cent of those who participated in the survey were interested in being registered with the Employment Agency. The Committee notes from the Government’s report the activities of the Employment Agency of Montenegro addressing the Roma, and other minorities, including the public works programme, the Second Chance Project and the efforts by the Employment Agency to cooperate with Roma associations, the Roma Scholarships Foundation and the National Council of the Roma. It also notes the activities to improve the capacity of the Employment Agency with a view to addressing more effectively the unemployment and low levels of education of the Roma population, and some measures taken to address prevailing stereotypes among the Roma population regarding employment of women. The Committee requests the Government to continue to provide information on the specific activities of the Employment Agency to promote equality of opportunities and treatment for national and ethnic minorities, and information, including statistics, on the impact of such measures on their situation in the labour market.

Article 5. Special temporary measures. The Committee recalls the provisions in the Constitution and the Law on Gender Equality No. 46/07 providing for the possibility to adopt special temporary measures (affirmative action). The Law on Minority Rights and Freedoms also appears to allow for special measures. The Committee asks the Government to provide information on any affirmative action measures that have been adopted to promote equality between men and women, as well as for national and ethnic minorities, in employment and occupation.

Enforcement. The Committee notes that the labour inspectorate has not recorded any cases of violations of non-discrimination provisions, and that no complaints concerning discrimination have been dealt with by the courts. The Committee requests the Government to continue to provide information on the number, nature and outcome of cases based on the various prohibited grounds set out in the Labour Law and the Gender Equality Law, addressed by the Ministry for Human and Minority Rights, the labour inspection, the Protector of Human Rights and Liberties and the courts, including information on the remedies provided and sanctions imposed.

Practical application. The Committee asks the Government to continue to provide detailed information, including statistics disaggregated by sex and national and ethnic origin, where available, on employment and training, in the private and public sectors, including the different grades and levels of the civil service. The Committee also requests the Government to provide copies of any studies or surveys undertaken or envisaged with the aim of establishing the nature and extent of any inequalities in employment and occupation with respect to the grounds covered by the Convention, and measures envisaged to address those inequalities.

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

Article 1, paragraph 1(a), of the Convention. Legislation on discrimination. The Committee notes with interest the legislative framework applying the Convention. It notes in particular the relevant provisions on equality in the Constitution, and the provisions in Labour Law No. 49/08, which covers the public and private sectors, prohibiting and defining direct and indirect discrimination based on a variety of grounds with respect to employment requirements and selection of candidates; working conditions and all rights based on employment relationship; education, capacity building and training; promotion; and termination of employment (sections 5–6). Labour Law No. 49/08 also prohibits and defines harassment and sexual harassment (section 8). The Committee further notes that the Law on Gender Equality No. 46/07 defines and prohibits discrimination based on sex and provides for positive measures to promote gender equality. The Committee further notes that the Law on employment, the General Law on education and the Law on adult education contain non-discrimination provisions, but copies have not been provided by the Government. It further understands that a Law on minorities’ rights and freedoms was adopted (Official Gazette of the Republic of Montenegro Nos 31/06, 51/06 and 68/07), and that a draft Law on the prohibition of discrimination in Montenegro is being developed. The Committee asks the Government to provide copies of the Law on minorities’ rights and freedoms, the Law on employment, the General Law on education and the Law on adult education, as well as information on the status of the draft Law on the prohibition of discrimination in Montenegro. Please also provide information on the application in practice of the relevant provisions of the Labour Law, the Law on gender equality and the Law on minorities’ rights and freedoms.

Article 1, paragraph 1(b). Additional grounds. The Committee notes that section 5 of Labour Law No. 49/08 prohibits direct and indirect discrimination based on language, age, pregnancy, health state, marital status, family duties, sexual orientation, material status, or some other personal characteristics. The Committee requests the Government to continue to provide information on the measures taken to address discrimination in practice on these grounds.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes that the Law on Gender Equality No. 46/07 provides for the adoption of the Action Plan on Achieving Gender Equality and allows for specific measures to be taken to promote gender equality. The Committee also notes that the Government’s report does not provide any information on the practical measures taken to promote the national policy on gender equality with respect to employment and occupation. The Committee asks the Government to provide a copy of the Action Plan on Achieving Gender Equality and detailed information, including statistics disaggregated by sex, on its implementation and results achieved in the areas of employment and occupation.

Sexual harassment. The Committee notes the prohibition and broad definition of sexual harassment in the Labour Law No. 49/08 (section 8(1) and (3)). The Committee asks the Government to provide information on the practical measures taken to prevent and address sexual harassment at work, as well as information on whether any cases of sexual harassment have been brought under section 8(1) and (3) and on the outcome thereof.

Employment restrictions for women. The Committee notes that section 104 of the Labour Law No. 49/08 provides that “an employed woman … shall not work in a job position with prevailing hard physical labour, works under ground or water, or a job involving tasks that can have detrimental effect on and an increased risk for [her] health and life”. The Committee asks the Government to provide further information on the specific types of work or posts from which women are being excluded on the basis of section 104, and on the specific reasons for such exclusions.

Equality of opportunity and treatment with respect to national and ethnic minorities. The Committee notes that the Government adopted a national minority policy strategy in 2008, an unofficial copy of which is available in English. The Committee further notes from the information provided by the Government to the Committee on the Elimination of Racial Discrimination (CERD) that the Government is taking various measures to promote equal opportunities for national and ethnic minorities, including the Roma. For instance, the Government adopted an Action Plan to implement the project on the Decade of Roma Inclusion: 2005–15 which defines the policy goals in a number of areas, including education and employment of the Roma population, the Strategy for the Improvement of the Position of Roma, Ashkali and Egyptian Populations (RAE) in Montenegro for the period 2008–12, and the Roma Education Initiative (CERD/C/MNE/1, 7 November 2008, and CERD/C/MNE/CO/1, paragraph 6). The Committee asks the Government to provide detailed information on the activities implemented under the Strategy on Minority Policy 2008, the project on Decade of Roma Inclusion: 2005–15, the Strategy for the Improvement of the Position of Roma, Ashkali and Egyptian Populations (RAE) in Montenegro for the period 2008–12, and the Roma Education Initiative, to giving effect to the provisions of the Convention with respect to national and ethnic minorities, as well as information, including statistics, on the results achieved.

Article 3(a). Cooperation with employers’ and workers’ organizations and other relevant bodies. The Committee understands that the Protector of Human Rights and Freedoms, the Ministry for Human and Minority Rights Protection, the Republic Council for Protection of Rights of Minorities and Ethnic Groups and the Council of Human Rights and Freedoms have specific responsibilities in promoting equality of opportunity and treatment and implementing national policies and action plans on equality. The Committee asks the Government to provide further information on the specific activities of these bodies to give effect to the principles of the Convention. Please also provide details of the measures taken to cooperate with the employers’ and workers’ organizations to promote and ensure the observance of the national legislation and policies on equality in employment and occupation, including in the context of the tripartite Social Council.

Article 3(d) and (e). Employment, vocational training and guidance and placement services under the national authority. The Committee notes that no specific information has been provided by the Government on the application of Article 3(d) and (e). It also notes from the Government’s information submitted to CERD (CERD/C/MNE/1, para. 76) that the Employment Agency of Montenegro and local employment bureaux appear to be involved in a number of activities addressed to Roma, and other minorities. The Committee asks the Government to provide information on the specific activities of the Employment Agency of the Republic of Montenegro to promote equality of opportunities and treatment between men and women and with respect to minorities. Please also provide information on the measures taken to promote equality of opportunity and treatment regarding employment, vocational training and guidance under the direction of a national authority.

Article 4. Persons suspected of, or engaged in activities prejudicial to the security of the State. The Government indicates that this Article is applied by the Criminal Code and the Law on general administrative procedure. The Committee asks the Government to indicate the specific provisions in the Criminal Code and the Law on general administrative procedure applying Article 4 of the Convention.

Article 5. Special temporary measures. The Committee notes that article 8 of the Constitution of 2007 provides for the adoption of “special measures aimed at creating the conditions for the exercise of national, gender and overall equality and protection of persons who are in an unequal position on any grounds shall not be considered discrimination”. In addition, pursuant to sections 15–18 of the Law on Gender Equality, special temporary measures (positive measures) accompanied with action plans can also be adopted to promote gender equality, including in education and employment. The Committee asks the Government to provide information on any special temporary measures that have been adopted to promote equality between men and women, as well as for national and ethnic minorities, in employment and occupation.

Enforcement and supervision. The Committee notes that the labour inspection services are responsible for the supervision of the non-discrimination provisions. It also notes that pursuant to the Law on Gender Equality, complaints concerning discrimination can be submitted to the Ministry for Human and Minority Rights, and that the Protector of Human Rights and Liberties can also receive complaints on human rights violations, including discrimination. The Committee requests the Government to provide information on the number, nature and outcome of cases based on the various prohibited grounds addressed by the Ministry for Human and Minority Rights, the labour inspection, the Protector of Human Rights and Liberties and the courts, including information on the remedies provided and sanctions imposed.

Practical application. Statistics. The Committee notes that the Government states that the Convention is fully implemented, without providing any further information enabling the Committee to assess the extent to which the Convention is being applied in practice. The Committee asks the Government to provide more detailed information, including statistics disaggregated by sex and national and ethnic origin, where available, on employment and training, in the private sector and the public sector, including the civil service. The Committee also requests the Government to provide copies of any studies or surveys undertaken or envisaged with the aim of establishing the nature and extent of any inequalities in employment and occupation with respect to the grounds covered by the Convention, and measures envisaged to address those inequalities.