Solicitud directa (CEACR) - Adopción: 2014, Publicación: 104ª reunión CIT (2015)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Samoa (Ratificación : 2008)

Legislation. Scope of application. The Committee notes the adoption on 5 April 2013 of the Labour and Employment Relations Act which repeals the Labour and Employment Act, 1972. The Committee notes that according to section 3, the Act does not apply to the service of Samoa, the police service, the service rendered to a matai (traditional authority) under the aiga (extended family) system or subsistence agricultural activities and any service or class of service which may be excepted by order of the Minister published in the Samoa Gazette and the Savali. With respect to the exclusion of those in the service of Samoa, the Committee notes that article 111 of the Constitution defines the term broadly as “service in any capacity of Samoa”. The Committee recalls that no provision in the Convention limits its scope of application as regards individuals or branches of activities. The Committee requests the Government to provide information on the following:

• (i) the specific categories of workers covered by the provision “service of Samoa”;
• (ii) how workers that are in the service of a “matai”, workers in the “service of Samoa”, workers in the police service and workers in subsistence agricultural activities are protected from discrimination in employment and occupation;
• (iii) the number of “matai” existing in the country, the approximate number of persons in their service; the kind of services that a “matai” may request and the legal provisions that regulate this kind of work;
• (iv) whether section 20 of the Labour and Employment Relations Act of 2013, which prohibits direct and indirect discrimination against any employee, or applicant for employment, in any employment policies, procedures or practices, also covers access to vocational training, conditions of work and termination of employment.

Article 1(1) of the Convention. The Committee notes with interest that section 2 of the Labour and Employment Relations Act of 2013, defines discrimination as a distinction, exclusion or preference based on one or more arbitrary grounds, including those listed in section 20(2), which have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Section 20(2) of the Act prohibits direct and indirect discrimination in employment on one or more arbitrary grounds, including ethnicity, race, colour, sex, gender, religion, political opinion, national extraction, sexual orientation, social origin, marital status, pregnancy, family responsibilities, real or perceived HIV status, and disability. The Committee requests the Government to provide information on the application in practice of sections 2 and 20(2) and on the obstacles encountered in their implementation as well as any claims filed before the courts or the administrative authorities concerning cases of discrimination on the grounds provided in section 20(2).

The Committee further notes that article 15(4) of the Constitution provides that “Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independence Day. Provided that the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in clause (2) and of any privilege or advantage which has been conferred on any of those grounds.” The Committee requests the Government to provide information on the implementation of article 15(4) of the Constitution, in particular the concrete cases in which there remains legal discrimination on the grounds provided for in article 15(2) (descent, sex, language, religion, political or other opinion, social origin, place of birth, family status or any of them) of the Constitution and the measures that are being taken to eliminate this discrimination.

Sexual harassment. The Committee notes that while section 19(c) of the Public Service Act, 2004, provides that every employee and chief executive officer has to treat everyone with respect and courtesy and without coercion or harassment, the Labour and Employment Relations Act of 2013, does not contain any provision concerning sexual or moral harassment. Given the gravity and serious repercussions of sexual harassment, the Committee recalls its general observation highlighting the importance of taking effective measures to prevent and prohibit sexual harassment at work. Such measures should address both quid pro quo and hostile environment sexual harassment; the Committee’s general observation of 2003 provides further guidance in this regard (see General Survey on the fundamental Conventions, 2012, paragraph 789). The Committee requests the Government to provide specific information on how it is ensured in practice that all persons are protected from sexual harassment in employment and occupation including both quid pro quo and hostile environment sexual harassment. The Committee also requests the Government to provide information on the implementation of section 19(c) of the Public Service Act, 2004, and to indicate if it covers sexual harassment, both quid pro quo and hostile environment forms.

Persons with disabilities. The Committee notes that section 37 of the Labour and Employment Relations Act of 2013 states that “where an employer employs a person living with a disability, the employer must engage the services of the person in accordance with terms and conditions as may be prescribed by regulations”. The Committee requests the Government to provide information on the practical application of section 37, including the adoption of any regulations.

Article 1(3). Definition of employment and occupation. The Committee notes that section 2 of the Labour and Employment Relations Act of 2013, defines “employment” as “an activity undertaken for gain or reward” and does not include study or training under a scholarship or other award approved by the Government. The Committee recalls that under Article 1(3) of the Convention, employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. The Committee requests the Government to provide information on how it promotes equality of opportunity in practice for those persons undertaking study or training under a scholarship or other award approved by the Government, and how they are protected in practice from discrimination on all the grounds enumerated in Article 1(1)(a) of the Convention.

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

Public service. The Committee notes that section 18(g) of the Public Service Act provides that there must be equal employment opportunity in the public service. The Committee requests the Government to provide information on the implementation in practice of section 18(g) of the Public Service Act, particularly on how it is ensured that public servants are protected against discrimination based on at least all grounds provided for in the Convention. Please also provide information on any administrative or judicial complaint filed by public servants on the basis of this provision.

The Committee also notes that in its report concerning the application of the Equal Remuneration Convention, 1951 (No. 100), the Government indicates that the implementation of the Public Service Act, 2004, is overseen by the Public Service Commission which has regard to the principles of gender balance in the recruitment and selection criteria. The Committee requests the Government to indicate the concrete measures adopted by the Public Service Commission in order to ensure the implementation of gender balance in the recruitment and selection criteria in the public service.

Gender equality. The Committee requests the Government to provide information on the reasons for the low representation of women among the “matai”, as well as in entrepreneurship and commerce in general, and the measures adopted or foreseen to improve their participation and for their empowerment. Please also provide information on the mechanisms established for the distribution of lands and on the proportion of lands that have been distributed to women.

Article 2. National equality policy. The Committee notes that the Government refers in its report to the adoption of a National Policy for Women of Samoa 2010–15. The Committee notes that this Plan aims, among other objectives, to improve the institutional mechanisms for the advancement of women; integrate gender issues into sectoral and national planning frameworks; increasing the utilization of sex-disaggregated data and improving responsiveness to issues that affect women and girls. The Committee notes that this policy, which has been the object of wide consultations at the national level, provides for a monitoring and evaluation mechanism and is accompanied by an implementation plan. The Committee also notes the adoption of a National Policy for Persons with Disabilities. The Committee requests the Government to provide information on the implementation and the results of the National Policy for Women of Samoa 2010–15, as well as the National Policy for Persons with Disabilities 2009–12. Please provide a copy of the latter. The Committee also requests the Government to indicate measures taken to adopt and pursue a national equality policy addressing grounds other than sex and disability in accordance with Article 2 of the Convention.

Vocational training. The Committee notes the adoption of the Strategic Policies and Plan July 2006–June 2015 of the Ministry of Education, Sports and Culture. The Committee requests the Government to provide information on the implementation and results of the Strategic Policies and Plan, in particular with respect to the measures concerning the education of girls as well as to the access of young women and men to vocational training free from gender stereotypes. Please also provide information on any specific measures adopted in favour of vulnerable groups and on any measures taken to promote educational and awareness raising on equality of opportunity and treatment in employment and occupation.

Ombudsperson. The Committee requests the Government to provide information on the function and the tasks carried out by the Komesina Sulufaiga (Ombudsperson) and to submit a copy of the Act that regulates its activities.

Statistical data. The Committee requests the Government to provide, if available, statistical data, disaggregated by sex, concerning the rate of employment and occupation, as well as of unemployment, the rate of school participation of children and the rate of participation in vocational training.