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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Samoa (Ratification: 2008)

The Committee notes the first report from the Government. The Committee notes in particular that the Government indicates that a new Labour and Employment Relations Bill (2011) is being developed in consultation with employers’ and workers’ representative organizations and with ILO assistance, to replace the current Labour and Employment Act, 1972. The Committee requests the Government to provide detailed information on any development concerning the adoption of the Labour and Employment Relations Bill (2011), especially with respect to the issues that are dealt with in the following paragraphs.

Legislation. Scope of application. The Committee notes that, according to section 2 of the Labour and Employment Act, 1972, managerial personnel are not considered as workers and thus are not covered by the provisions of the law. Moreover, section 3 provides that the law does not apply either to the service of Samoa; the service rendered to a matai (traditional authority); and any service or class of service which may be excepted by order of the minister published in the Samoa Gazette and the Savail. With respect to the exclusion of those in the service of Samoa, the Committee notes that article 111 of the Constitution defines it broadly as “service in any capacity of Samoa”. The Committee further notes that the Labour and Employment Relations Bill (2011) maintains the exclusions enumerated. Moreover, the Committee notes that the Bill also excludes agricultural undertakings (section 3(1)), although the same Bill provides, in section 3(4)(b), that businesses involving the agricultural sector are covered. The Committee recalls that no provision in the Convention limits its scope 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 in any capacity of Samoa”;

(ii) how managerial personnel, workers that are at the service of a “matai”, workers in the service of the State and workers in agricultural undertakings are protected from discrimination in employment and occupation and whether consideration is being given to include them in the scope of the Labour and Employment Relations Bill (2011);

(iii) the number of “matai” existing in the country, the approximate number of persons at their service; the kind of services that a “matai” may request and the legal provisions that regulate this kind of work;

(iv) the apparent contradiction between section 3(1), that refers to the exclusion of agricultural undertakings from the scope of the Bill, and section 3(4)(a) and (b), that indicates that every government statutory body or agency and the agricultural sector are covered;

(v) any service or class of service that has been excluded from the scope of application of the Law by the minister, pursuant to section 3 of the Labour and Employment Act, 1972; and

(vi) whether section 20 of the Labour and Employment Relations Bill (2011), that prohibits discrimination against any employee, or applicant for employment, also covers access to vocational training, conditions of work and termination of employment.

Article 1(1) of the Convention. Definition of discrimination. The Committee notes that article 15(1) and (2) of the Constitution provide for a general prohibition of discrimination on the grounds of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them. The Committee notes that colour, race and national extraction are not included in this enumeration.

The Committee further notes that the Labour Employment Act, 1972, contains no definition of discrimination. The Committee notes, notwithstanding that section 20 of the Labour and Employment Relations Bill (2011) provides for a prohibition of direct and indirect discrimination in employment and occupation on the following grounds: ethnicity; race; colour; sex; gender; religion; political opinion; national extraction; sexual orientation; social origin; marital status; pregnancy; family responsibilities; real or perceived HIV status or disability. The Committee welcomes the inclusion in the Labour and Employment Relations Bill of all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention, including race, colour and national extraction, as well as a number of additional grounds as foreseen in Article 1(1)(b) and hopes that they will be included in the new Labour and Employment Relations Act when it is adopted.

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 subsists legal discrimination on the grounds provided for in article 15(2) of the Constitution and the measures that are being taken to eliminate this discrimination.

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.

Discrimination on the basis of sex. The Committee notes that section 33 of the Labour and Employment Act, 1972 prohibits night work for women and provides that no woman shall be employed in manual work unsuited to her physical capacity. The Committee further notes that the Labour and Employment Relations Bill (2011) repeals this section. The Bill also contains some provisions concerning prohibition of dismissal of pregnant women and that, in case of a dismissal, the burden of proof will be on the employer. Recalling that women should have the right to pursue freely any job or profession without stereotyped assumptions regarding their aspirations and capabilities, their suitability for certain jobs or their interest or availability for full-time work, the Committee asks the Government to take the necessary step to ensure the adoption of the Labour and Employment Relations Bill as soon as possible with a view to effectively repealing section 33 of the Labour and Employment Act, 1972.

Sexual harassment. The Committee notes that while section 19(c) of the Public Service Act, 2004, provides that every employee and CEO has to treat everyone with respect and courtesy and without coercion or harassment, neither the Labour and Employment Act, 1972, nor the Labour and Employment Relations Bill (2011) contain any provision concerning sexual or moral harassment. With respect to sexual harassment, the Committee draws the attention of the Government to its general observation of 2002. The Committee asks the Government to include a provision in the Labour and Employment Relations Bill (2011) that prohibits sexual harassment in employment and occupation and to ensure that the definition of sexual harassment includes both quid pro quo and hostile environment sexual harassment. The Committee also asks the Government to consider including a provision prohibiting harassment on the other grounds set out in Article 1(1)(a) of the Convention. 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 sexual harassment.

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.