Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Fiji (Ratification: 2002)

A Government representative indicated that in 2008 the National Council for Building a Better Fiji (NCBBF) had adopted the People’s Charter for Change, Peace and Progress (People’s Charter) which aimed to build a society based on equality of opportunity for all Fijian citizens pursuant to the findings and recommendations contained in the Report on the State of the Nation and the Economy (SNE Report). The Charter contained key measures and actions to be taken, such as the promulgation of an anti-discrimination law; the development of education, vocational training and job placement; the promotion of multicultural education and the gradual phasing out of institutional names that denoted racial affiliations; and the elimination of racial and inappropriate categorization and profiling in government records and registers. Other measures included the increase of the participation of women at all levels of decision-making; the enactment of a code of conduct for public servants and persons who held statutory appointments; the reform of the public sector, including the removal of any political interference and the compulsory training of civil servants; the development of cooperation between the Government and the private sector; and the introduction of a national minimum wage. The Charter also contained specific measures concerning indigenous peoples and their institutions. The implementation of the measures envisaged by the Charter included: a new non-racially based Constitution which guaranteed a system of one person one vote; publicawareness campaigns to promote national identity; national anthem and flag ceremonies to be observed in schools and important national state functions as a way of promoting national identity; elimination of race-based names of primary and secondary schools; and a common name “Fijian” to be used by all citizens of Fiji irrespective of ethnic origin.

Concrete steps that had been taken by the Government to further these strategies included the following: renaming the country as “Fiji” and providing the name “Fijian”, referring to all citizens of Fiji and not just the indigenous peoples; removing racial and inappropriate categorization and profiling in government records and registers, for example, forms that had required persons of Indian descent to state their father’s name had been withdrawn; promoting Fiji Day celebrations which had become an annual event. Most schools and organizations in the country were observing Fiji flag-raising ceremonies and the singing of the national anthem. The Ministry of Education, Culture, Art and Heritage had advanced many of the strategies towards national identity and social cohesion through such things as appropriate curriculum development and affirmative programmes, addressing teaching of the vernacular languages, comparative religious studies, and establishing special schools and institutions, including strengthening technical and vocational education and training. A new syllabus called “Healthy living and physical education for classes 3 and 4” had been developed and included human growth and development, building healthy relationships, safety, personal and community health and physical education. The Inclusive Education Policy also ensured education for pupils with disabilities and the Ministry observed a zero tolerance policy on abuse of children and declared drug-free zones in all education institutions. Mixed race and religious schools were being encouraged. An anti-discrimination law would be promulgated. The two main vernacular languages were to be taught in the education curriculum. The encouragement and promotion of religious freedom and understanding in schools and society would be encouraged and promoted, and the introduction of an education curriculum to include multicultural and comparative religious studies courses was also foreseen.

With regard to the National Policy on Sexual Harassment in the Workplace, which had been developed in 2008 in consultation with the social partners, the speaker informed the Committee that to date, only two cases concerning sexual harassment had been brought before the Employment Relations Tribunal and four cases had been settled with the Mediation Service in 2011. With an increase in awareness of the Policy on Sexual Harassment, it was expected that complaints would increase. With regard to the numerous measures proposed in the People’s Charter to promote equal access to education and training, the speaker indicated that his Government intended to introduce extensive reforms to the education system over the next two years. This would include a review of all subsidiary laws including the Education (Establishment and Registration of Schools) Regulations, 1966, which still allowed for preference to be given to pupils of a particular race or creed. The Ministry of Education had implemented a range of educational programmes under social justice and affirmative action programmes to improve access and retention, promote national and cultural identity and citizenship, implement curriculum guidelines and strengthen assessment of learning to improve student performance, enhance rural education programmes and improve the quality of technical and vocational education and training programmes.

With regard to vocational education and training, the speaker indicated that in 2010, a total of 69 vocational centres had received grant assistance from the Government with a student roll of 2,712, representing an increase from 2,302 in 2009. There had also been an increase in the enrolment of students with special needs in 2010. The total number of students enrolled in all school levels, from early childhood intervention to tertiary level, had increased from 1,144 in 2009 to 1,182 in 2010. The Ministry of Education had abolished in 2011 all external examinations in primary schools including form 4 (year 10) which would significantly reduce the drop-out rate of pupils and promote full primary and secondary education for the first time in Fiji. Together with free tuition and a free transport and textbook scheme introduced by the Government in 2011, it was anticipated that this reform would significantly boost access for both boys and girls in the school system. Complementing these initiatives, Fiji had recently implemented the ILO TACKLE child labour project and was responsible for, among other things, the elimination of child labour in all workplaces. This was complemented with the Ministry of Education’s project to promote child education, as well as an active project to prevent the sexual exploitation of children within the community at large. There was also ongoing consultation on the upgrading and improvement of vocational training programmes offered in special schools. The number of pupils enrolled in vocational training had increased from 201 in 2008 to 262 in 2010. Finally, an Inclusive Education Policy had been approved by the Government in order to ensure and strengthen quality education for students with disabilities and address the needs of pupils with special needs in schools throughout Fiji. Implementation of the new Inclusive Policy would begin this year through the following measures identified by the Ministry of Education: improving the provision of re-education and vocational training services so as to meet the needs of people with disabilities; providing incentives to employers to employ people with disabilities; implementing a national five-year plan of action for people with disabilities; and developing and implementing a policy for persons with disabilities, including regulations to require appropriate access to all public buildings and places.

The Worker members recalled that the Government had ratified the Convention in 2002 and that it was the first time that the Government had been required to explain to the Committee the manner in which it was applying the Convention. It was a case in which the Committee of Experts had noted progress, in particular, with regard to: (i) the adoption, on 15 December 2008, by the NCBFB of the People’s Charter, the aim of which was to build a society based on equality of opportunity and peace for all the citizens of Fiji; and (ii) the establishment of the National Policy on Sexual Harassment in the Workplace prepared in consultation with the social partners. The Committee of Experts also referred to the issue of equal access to education and vocational training, which was covered by the definition of employment and occupation contained in Article 1(3) of the Convention. The Committee of Experts had expressed doubts concerning the implementation of the principles contained in the People’s Charter, which did not seem to have resulted in the reform of the education system called for in the SNE Report. No changes had yet been made to the education system which had been established by the Education Regulations, 1966, so it was likely that priority continued to be given to pupils of a particular race or creed in the admission process. Noting that, to judge by the report of the Committee of Experts, the situation described seemed reassuring on the whole, the Worker members wished to emphasize that the reality was very different. Even though the People’s Charter existed, in many ways it was just window dressing, aimed chiefly at promoting the country’s image in the eyes of the international community. The situation described in the report contrasted with the action taken since 2006 by the ruling military regime, which had systematically removed all its opponents. The country was currently under a state of emergency in which all power was vested in the hands of the President, who had assumed total power on the pretext of maintaining public order. The presidential decrees which were reviewed on a monthly basis were therefore not subjected to any judicial control regarding their legality or constitutionality.

The Worker members indicated that the public sector trade unions had been deprived of the possibility of representing or defending their members in situations of discrimination since they were now excluded from the scope of the Employment Relations Promulgation. There was therefore no possible recourse against cases of discrimination or sexual harassment or any means of seeking maternity protection. Such an exclusion came within the scope of Article 1(1)(b) of the Convention inasmuch as public sector workers were deprived of the right to equality of treatment in employment and occupation. Moreover, they had also been stripped of their right to be defended and hence there was an indirect violation of trade union rights in the country. The Worker members denounced the adoption of Decree No. 21 of 16 May 2011 revising the Employment Relations Promulgation, 2007. Decree No. 21 applied generally to employers and workers, including workers employed by the local authorities, central authorities and the sugar industry, but excluded the Government and certain categories of workers, such as the police and the army, from its scope. But in general it was a decree of exclusion since one of its effects was to exclude 15,000 public service workers from the scope of labour law. Indeed, following the introduction of the new section 266 in the Promulgation of 2007, the aforementioned workers no longer had any legal basis for claiming their rights. In addition, the Government’s action had also had the effect of withdrawing certain areas from the courts’ sphere of competence. Protection against discrimination was a fundamental human right which was now being denied to public sector workers. The Worker members recalled that, according to the ILO, “discrimination results in and reinforces inequalities. The freedom of human beings to develop their capabilities and to choose and pursue their professional and personal aspirations is restricted, without regard for ability. Skills and competencies cannot be developed, rewards to work are denied and a sense of humiliation, frustration and powerlessness takes over”. The Worker members expected the Government to seek a consensus solution in order to bring practice into line with the requirements of the Convention, since the situation clearly no longer corresponded to the one described in the Committee of Experts’ report.

The Employer members recalled that this was the first time this case was being discussed before the Committee, even though the Committee of Experts had formulated observations regarding Fiji’s compliance with the Convention in 2007, 2010 and 2011, welcoming the adoption in December 2008 of the People’s Charter, which aimed to build a society based on equality of opportunity for all Fijian citizens. Noting the information provided by the Government on the content of the Charter, the Employer members welcomed its adoption and encouraged the Government to provide the ILO with information on the implementation of the measures it envisaged in order to prohibit discrimination and to promote equal opportunity for all in relation to access to education, vocational training and employment, as well as on the impact of such measures in practice. The Employer members noted with interest the adoption by the Government of the 2008 National Policy on Sexual Harassment in the Workplace. Welcoming the information provided by the Government to the Committee on the implementation of this Policy in practice, the Employer members looked forward to the provision by the Government of additional information on this issue. With regard to the measures proposed in the People’s Charter to ensure access to education for all, the Employer members noted that, while the Government had indicated that race-based schools had been eliminated, the Education (Establishment and Registration of Schools) Regulations, 1966, still provided in law that the admission process in the educational system allowed for preference to be given to students of a particular race or creed. The Government had stated that this did not happen in practice. The Employer members encouraged the Government to ensure, in connection with the proposed educational reform, that equal access to education and vocational training be granted to both men and women of all ethnic origins and that such regulations be repealed as a result. They also encouraged the Government to provide the ILO with information in this regard.

The Employer members also considered it unfortunate that, as noted by the Committee of Experts, based on a 2007 census, the participation of men in the labour force was notably higher than the participation of women and that the unemployment rate of women was double the rate of men. It was also unfortunate that the Government had apparently not replied to the requests of the Committee of Experts for information on the concrete measures taken by the Government to promote gender equality in employment and occupation. Noting, moreover, that the Government representative had not addressed this issue before this Committee, the Employer members encouraged the Government to provide a reply in this regard to the Committee of Experts. The Employer members welcomed the enactment, in April 2007, of the Employment Relations Promulgation, which prohibited direct and indirect discrimination in employment and occupation, as well as the information provided by the Government on training and awareness-raising initiatives in respect of the implementation of the Promulgation in 2008 and 2009, and expressed the hope that the Government would continue to provide information about the implementation and enforcement of this legislation so that the situation – both in law and in practice – could continue to be reviewed in order to ensure compliance with the Convention. Noting with respect to employment in the public sector that the Government had not provided any additional information to the Committee, apart that all Fiji nationals were afforded equal opportunity to enter the public sector and that selection was based on merit, the Employer members encouraged the Government to provide information on the measures taken to address equality of opportunity and treatment of men and women of all ethnic groups in the public sector so as to allow for a better understanding of compliance with the Convention in this respect.

The Worker member of the United Kingdom noted that there had been a significant deterioration in the situation in Fiji since the last examination of this case by the Committee of Experts. She emphasized that no measures had been taken to remove discrimination in access to education and training on grounds of race, creed or gender, as requested by the Committee of Experts. On the contrary, equality of access had become less likely, as the rise in school fees meant that schooling was out of reach for many, and a large number of children, in particular those from ethnic minorities, were forced to drop out and engage in child labour. In addition to discrimination in access to education, there was also a deplorable lack of legal protection of workers in Fiji. Claims stemming from discrimination and harassment, together with other employment issues, could no longer be brought to court by any civil service worker and access to the independent forums of the Employment Relations Tribunal and Court was denied to public service workers. This was due to Decree No. 21 of 2011 which simply outlawed claims which challenged Government or civil service decisions and annulled existing Court or Tribunal Orders against state bodies. In one stroke, public servants had been prevented from complaining about discrimination or other abuses in their working conditions, and those who had already proved their case were immediately deprived of their remedy. Furthermore, the work of the Human Rights Commission was in a state of “government-induced coma” and kept barely alive. The speaker regretted that the Government had not taken any steps to implement the key measures proposed in the People’s Charter. The promulgation of an anti-discrimination act had not taken place and there had been no progressive development of education and vocational training, nor any elimination of racial or other inappropriate categorization and profiling. Instead, fundamental freedoms of workers had been curtailed. The speaker expressed her concern over the fact that, along with other trade unionists, her colleagues in the two teachers’ unions suffered continuous discrimination and harassment in their attempts to work within an education system built on the principles of equality and human rights, with dignity and fairness for all. This was illustrated by the suspension and dismissal of Mr Tevita Koroi, President of the Fijian Teachers’ Association, who had no hope of legal redress under Decree No. 21. He had been arrested and threatened with violence and the required permits for union meetings had been refused or issued late, with union officials prevented from travelling to attend meetings. The speaker emphasized that there was widespread interference in the organization of workers in other sectors, such as the sugar industry, often through military intervention, intimidation and violence.

With regard to the adoption of the 2008 National Policy on Sexual Harassment, the speaker stated that the Fijian Trade Union Congress was unaware of one single case of sexual harassment being pursued as a result of the Policy. This was an indication of a complete failure to implement measures to allow complaints to come forward. Furthermore, pay discrimination continued and, in the case of teachers, the existing wage discrimination had deepened as a result of the failure to implement the agreement reached after the 2003 job evaluation exercise which had prevented the adjustment of allowances in rural areas. In conclusion, the speaker emphasized that equality in the workplace could only begin to flourish in conditions of dignity and guaranteed freedoms, and that without respect for the rights of workers to complain about their treatment at work, or to organize around the issues that concerned them, Fiji could not take real steps towards the development of measures to combat discrimination.

An observer representing Public Services International (PSI) referred to Decree No. 21 which excluded the 15,000 civil servants working in the Fiji government ministries from the benefits and rights contained in the Employment Relations Promulgation, 2007 and thus, by extension, from the rights and benefits envisaged in the People’s Charter. Under Decree No. 21, civil servants would no longer enjoy the right to equal employment opportunities, the right to freedom of association or the right to collective bargaining. The Promulgation of 2007, aiming at eliminating discrimination on grounds of ethnic origin, sex, religion, age, disability, HIV and AIDS or sexual orientation, as well as prohibiting sexual harassment, promoting equal pay, assuring maternity protection and minimum wages, would no longer apply to civil servants. This group had, through their unions, played a key role in the development of the 2008 National Policy on Sexual Harassment and it was, in this regard, ironic that they should now be excluded from it. In addition, Decree No. 21 excluded the civil servants and their unions from taking action, or filing claims, disputes or grievances of any form against the Government, denying them access to the Employment Relations Tribunal, the Employment Relations Court and any other adjudication body. Any claims or awards which were under way at the time of the promulgation of Decree No. 21 would, additionally, be terminated. Public service employees were thereby denied any mechanism to resolve their grievances against decisions of public authorities, as the Public Service Disciplinary Tribunal could not be said to provide such a mechanism since its role was confined to reviewing disciplinary measures taken against employees. The State, which should be setting the equality standard for all other employers, had hence effectively decided to discriminate against its own employees. The adoption of Decree No. 21 contradicted the essential role that trade unions played in promoting equality. In the absence of legislation, it was trade unions, through social dialogue and collective bargaining, that had advanced the cause of equality. Through collective bargaining they had achieved equality outcomes over and above those contained in the legislation and stood as the enforcers of legislation and agreements aimed at achieving equality. Furthermore, the speaker recalled that the Fiji National Provident Fund was the only social security fund for workers. Under current proposals the fund’s annuity rate of 15 per cent would be reduced to 9 per cent. This drastic reduction would represent a gross injustice to the workers who had contributed to the fund over the years in the expectation that they would receive an adequate pension on retirement and live in dignity in their old age. The proposal had also to be seen in the context of section 15 of Decree No. 6 of 2009, which introduced a compulsory retirement age of 55 for civil servants. These two measures combined would serve to ensure that the majority of pensioners would retire in poverty. It was regrettable to note that 65 per cent of workers in fulltime employment were earning wages below the poverty line and that 15 per cent of the population lived in squatter settlements. In conclusion, while the ILO had long recognized the principles of freedom of association and collective bargaining as being fundamental for the development of all other labour rights, the amendments to the Promulgation of 2007, introduced by Decree No. 21, stood in marked contrast to these principles.

The Worker member of Australia associated herself with the concerns expressed by the Worker members over the failure of the authorities to comply with the Convention. Referring to the issues raised by the Committee of Experts in relation to the adoption of the People’s Charter, the speaker noted that little had been done to implement it in law and practice. The same was also the case with the 2008 National Policy on Sexual Harassment. Both the Committee of Experts and the United Nations Committee on the Elimination of Discrimination against Women had expressed concern at the absence of specific legal provisions giving effect to this Policy, as well as the associated absence of any concrete measures to address sexual harassment at the workplace. In the context of the need to ensure access to complaint mechanisms with respect to sexual harassment, she recalled that the Fijian Human Rights Commission had been established under the 1997 Constitution to oversee and protect human rights within the country. Since the Constitution’s abrogation in 2009, and despite the revival of the Commission by a presidential decree, this Commission no longer had the legitimacy or authority through which to promote or protect human rights in the country, including the right to be free from discrimination in employment and occupation. Furthermore, the speaker regretted the existence of anti-union discrimination and discrimination on the basis of political opinion, which were often interwoven, pervasive and intensifying. Workers were often compelled to choose between their job and their role in the trade union and any trade unionist who publicly criticized the regime risked being suspended from their job, preventing them from practicing their profession or earning a decent income with which to support themselves or their families. With these developments in mind, it was very difficult to see how the Fijian authorities could effectively formulate and implement measures to address discrimination in employment and occupation, in particular with regard to their capacity to engage in social dialogue with respect to any proposed laws and policies relevant to the Convention. Consultations could hardly be considered to be genuine in a country where interference with union structures and activities was increasingly common and where those who sought to represent workers were intimidated and feared for their safety and that of their families. In this regard, the speaker questioned to what extent it was possible to effectively recognize and protect the rights of workers in accordance with the Convention in a country where the rule of law was fragile at best; where the interim Government had suspended the Constitution and ruled by decree; where the courts were prevented from exercising jurisdiction over a wide range of matters; where confidence in the independence and integrity of the judiciary was declining daily; where there was no freedom of the media; and where the rights of workers to access effective and impartial dispute resolution mechanisms, including those with respect to complaints concerning discrimination, and to be represented by organizations of their own choosing, were being significantly curtailed. In conclusion, while recognizing the Government’s initiative, through the adoption of the People’s Charter and the National Policy on Sexual Harassment, to take steps to bring national law closer to compliance with the Convention, the speaker doubted, in light of the prevailing political climate, that the authorities had the capacity to address discrimination in employment and occupation on any of the seven grounds identified in the Convention.

An observer representing the International Trade Union Confederation (ITUC) focused on the realities on the ground and the limitations faced by trade unions in dealing effectively with discrimination and unfair treatment of workers. While the social partners had been in the process of reviewing various provisions of the Employment Relations Promulgation, 2007, as requested by the Committee of Experts, the Government had imposed Decree No. 21, which excluded public sector workers from the provisions of the Employment Relations Promulgation, thus denying them any rights under this instrument, including the right to equal remuneration and equal employment opportunities and protection from any form of discrimination. Workers or their unions in the public sector no longer had the right to challenge any decision of the Government in any court, even when they might have suffered discrimination or unfair treatment. Tripartite consultations had been undermined and were almost non-existent, while the Government unilaterally issued and imposed decrees which did not comply with core labour standards or fundamental human rights. Similarly, Decrees Nos 6, 9, 10 and 25 of 2009 did not allow any union or workers in the public sector, including Government-owned entities and the sugar industry, to challenge any management decision where any action was taken in the guise of restructuring. This again included cases of discrimination, unequal or unfair employment opportunities, redundancies and denial of equal remuneration. All these decrees summarily terminated any pending cases before the arbitration tribunal or the Labour Court. The Public Emergency Regulations, which had been in existence for the last 27 months, restricted and, in some cases, denied the rights of workers and their unions to convene meetings to discuss and address these issues. They also denied workers the right to freedom of speech, assembly and any form of industrial action. The media were also denied freedom of expression. Any breach of the Public Emergency Regulations would render the union and its officials liable to prosecution and persecution. With regard to the comments of the Committee of Experts on sexual harassment and the implementation of the provisions of the Employment Relations Promulgation, he indicated that the Government had totally excluded all public sector workers from these provisions through the abovementioned decrees. As a result, the question of implementation raised by the Committee was redundant. Workers no longer enjoyed this protection in the public sector. In the private sector, these rights continued to exist for the time being in the statutes but, in practice, there were very few isolated cases, if any, where any sexual harassment rulings had been handed down, and the implementation of the policies remained a far-fetched dream. The fact of the matter was that workers faced insecurity of employment because their fundamental rights had been abrogated and were, therefore, unlikely to raise any complaints with their employers or their unions for fear of reprisals, including intimidation and termination of employment. It was impossible to talk about non- discrimination and equality in this environment. The noble principles proclaimed in the People’s Charter were just beautiful words designed to mislead the international community. The speaker asserted that many citizens who had dared to air criticisms of government policies, including himself, had faced summary arrests by the military, torture and beatings in military camps. People lived in fear and could not speak out against such atrocities or against any form of discrimination or unfair or unequal opportunity. Finally, he stated that public sector posts were often filled on the basis of political criteria rather than merit, and this explained the large number of military officers holding senior government positions.

The Government representative indicated that it was obvious from the discussion that the motivation of certain speakers was related to regional politics rather than the steps taken by the Government in conformity with the Convention. He would therefore provide replies only on selected points. The statements made regarding the state of emergency in the country had not been accurate. A public emergency regulation remained in force for 30 days at a time, after which the President was being advised on whether the state of emergency should continue, depending on the evolution of the security situation. At this moment, the state of emergency was in force and therefore some rights, such as freedom of association, were being restricted. With regard to the Education (Establishment and Registration of Schools) Regulations, 1966, which provided that, in the admission process, preference might be given to pupils of a particular race or creed, his Government appreciated that this instrument needed to be reformed in the framework of the wider reform of the education system. The Government was committed to preventing discrimination on any grounds whatsoever. The Ministry of Education had a firm policy that no school should apply the policy contained in the regulations and made sure that no school did so. With regard to the provisions of Decree No. 21, he specified that this amendment had not affected the functioning of the public service disciplinary tribunals set up in 2008 to deal with matters concerning public sector workers and maintained avenues of redress, such as the Court of Appeal and the High Court. The amendment did prevent, however, aggrieved parties from starting the process all over again before the Employment Relations Tribunal, in order to avoid a duplication of procedures. The problem of poverty raised by some speakers was not specific to Fiji, which was a developing country, and was working to eliminate poverty through, for instance, free textbooks distributed to pupils, especially in rural areas so as to promote equal access to education. With regard to the case of Mr Tevita Koroi, his Government had already responded in writing to the Committee on Freedom of Association in relation to this case (No. 2723) and would not go into detail on this issue. With regard to the comments made on the independence of the judiciary, he emphasized that these allegations were unfounded and irrelevant to the discussion. Even though such allegations were being made with monotonous regularity, they were never accompanied by concrete examples.

The Employer members emphasized that, while the adoption of the People’s Charter in 2008 had been welcomed, the Government was now called upon to provide information on the implementation of the measures required by the Charter, such as the adoption of an anti-discrimination act, so that the Committee of Experts could review the Government’s compliance with the Convention. While the Government had provided some information to the Committee about the impact of Decree No. 21, the Employer members urged the Government to take measures to promote both equality in employment and occupation for persons of all ethnic origins and gender equality. The Employer members remained concerned about the impact of Decree No. 21 on the protection included in the Employment Relations Promulgation and encouraged the Government to provide the ILO with additional information regarding Decree No. 21 and its impact on equality of opportunity and treatment in public sector employment so that compliance with the Convention could be assessed.

The Worker members recalled that the case under discussion showed how the situation in a country, as described in a report, could change completely within just a few months on account of the authoritarian regime in power. Yet, in the interests of the workers, a commonly agreed solution should be found to the reform of the country’s legislation, including the possibility of reverting to the original wording of the Employment Relations Promulgation, 2007. As noted in the report of the Committee of Experts, the People’s Charter, which aimed to build a society based on equality of opportunity and peace for all Fijian citizens, offered a suitable working basis. It remained to apply the principles embodied in the Charter to the reality of workers’ everyday lives. The Government should agree to enter into a tripartite dialogue with ILO assistance, and repeal, not just the presidential decrees so as to ensure compliance with the Convention, but also the laws on freedom of association and on collective bargaining. The Government should guarantee access to justice for all public and private sector workers so that they could assert their rights retroactively and thus neutralize the impact of Decree No. 21. Finally, the Worker members called on the Government to provide all the information requested by the Committee of Experts for its next session in November–December 2011. That information should cover the way the national policy on sexual harassment was being enforced at workplaces, and the implementation of the reform of the educational system, especially the measures designed to guarantee equal access to education and vocational training for boys and girls, men and women, of all ethnic groups, as well as the effect of those measures in practice.

Conclusions

The Committee took note of the oral information provided by the Government representative and the discussion that followed.

The Committee noted that the Committee of Experts had noted with interest the adoption in 2008 of the Peoples’ Charter for Change, Peace and Progress and the National Policy on Sexual Harassment in the Workplace. The Committee had also noted the proposed measures to ensure access to education for all and that the education system would undergo an extensive reform. In this context, the Committee of Experts had requested clarification regarding whether the system established under the Education (Establishment and Registration of Schools) Regulations, 1966, providing that in the admission process preference may be given to pupils of a particular race or creed, was still in force.

The Committee noted the information provided by the Government outlining the strategies and the concrete steps taken or envisaged such as removing racial and inappropriate categorization and profiling in government records and registers. In this regard, the Committee took note of the Government’s indication that the forms that required persons of Indian descent to indicate their father’s name had been removed. The Committee further noted the Government’s statement that the reform of the education system would include a review of all subsidiary laws including the Education (Establishment and Registration of Schools) Regulations, 1966. The Government stated that it was carrying out a range of programmes to improve the educational system, including for persons with disabilities, and the quality of technical and vocational education, including with a view to increasing the enrolment of boys and girls in the school system. Regarding the implementation of the National Policy on Sexual Harassment in the Workplace, the Committee noted the information regarding two cases concerning sexual harassment that had been brought before the Employment Relations Tribunal and four cases settled through the Mediation Service in 2011.

While noting that the Peoples’ Charter provided a good basis for further action to promote equality of opportunity and treatment in employment and occupation, the Committee urged the Government to ensure that the principles contained therein were translated into concrete action. In this regard, it called on the Government to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; to effectively address discriminatory practices; and to ensure equality in employment, training and education for all persons of all ethnic groups.

The Committee also noted the recent amendment of the Employment Relations Promulgation No. 37 of 2007 by the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011), a copy of which was provided by the Government, excluding government employees, including teachers, from the scope of the Employment Relations Promulgation and thus from its non-discrimination provisions (section 2). The Committee was concerned that this exclusion could have a negative impact on the right to non-discrimination and equality of opportunity and treatment of government employees, especially in the context of the present difficulties in exercising the right to freedom of association. The Committee noted further that section 3 of Decree No. 21 prohibited any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government ..., any Minister or the Public Service Commission ... which has been brought by virtue of or under (the Employment Relations Promulgation)”, and took due note of the Government’s explanation in this regard. The Committee urged the Government to ensure that government employees had the same rights to non-discrimination and equality in employment and occupation as other workers covered by the Employment Relations Promulgation, and had access to competent judicial bodies to claim their rights and to adequate remedies. The Committee asked in particular that the impact of Decree No. 21 be reviewed in this context.

Noting the low labour force participation of women and their high unemployment levels, the Committee asked the Government to take concrete measures to promote gender equality in the public and private sectors.

The Committee urged the Government to provide detailed information on the concrete action taken to implement the People’s Charter and the National Sexual Harassment Policy, and the results secured by such action, in the public and private sectors. The Committee urged the Government to take such measures in consultation with the social partners. Noting the Government’s indication that an anti-discrimination law was to be adopted, it asked the Government to provide information regarding this law so that the Committee of Experts could review its compliance with the Convention. The Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with ILO assistance, with a view to addressing the issues related to the implementation of the Convention.

The Committee requested the Government to include in its report to the Committee of Experts due in 2011, complete information regarding all issues raised by this Committee and the Committee of Experts, so that this Committee could assess at its next meeting in 2012 whether any progress had been made.