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

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

Article 1 of the Convention. Legislation. Scope of application. The Committee notes the information provided by the Government in its report in response to the questions raised previously. In particular, it notes the Government’s indication that the Labour and Employment Relations Act (LERA) of 2013 does not apply to “those in the service of Samoa”, as defined under article 83(a)–(k) of the Constitution, to services rendered to a Matai (traditional authority) under the Aiga (extended family) system, nor to subsistence agricultural workers, nor to those engaged in the public service. It also notes the Government’s indication that these workers are nevertheless protected under the Constitution, which prohibits discrimination based on race, sex, disability, language or social status, as well as the indication that no cases of discrimination have been reported to the courts. The Committee recalls that excluding certain categories of workers from the scope of general labour law may adversely affect workers of a particular sex or ethnic origin and that, when certain categories of workers are excluded from general labour or employment law, it needs to be determined whether special laws or regulations apply to such groups, and whether they provide the same level of rights and protection as the general provisions. The Committee also recalls that constitutional provisions providing for equality of opportunity and treatment, although important, have generally not proven to be sufficient to address specific cases of discrimination in employment and occupation and that, in the absence of a clear legislative framework supporting equality and non-discrimination for such groups of workers, it needs to be shown how such rights are ensured in practice. In addition, the Committee emphasizes that the Convention calls for equality legislation and policies to be applied to those employed under the direct control of the national authority, including the public sector, and that the absence of discrimination complaints often indicates a lack of an appropriate legal framework or awareness of rights (see General Survey on the fundamental Conventions, 2012, paragraphs 741, 742, 851 and 870). The Committee requests the Government to provide specific information on how it is ensured in legislation or policy, as well as in practice, that those workers excluded from the scope of the LERA 2013, including public service workers, such as the police, subsistence agricultural workers and Matais are protected against discrimination on the grounds set out in the Convention.

Article 2. National policy. Sex discrimination. The Committee notes the measures taken to implement the National Policy for Women of Samoa 2010–15, which includes awareness and advocacy workshops and capacity-building initiatives by the Ministry of Police on gender-based violence. It notes, however, that the Government’s report does not indicate the measures taken to implement policy outcomes 1 (Responsive institutional mechanisms for the advancement of women), 4 (Sustainable economic development for women) and 5 (Increased participation of women in public life and decision-making), as they pertain to sex discrimination in employment and occupation. The Committee recalls that, in implementing national policies, workers’ and employers’ organizations play an important role in developing and promoting the acceptance and observance of policies, as well as in evaluating their impact (see the 2012 General Survey, paragraph 858). The Committee requests the Government to provide further information on the measures taken to implement policy outcomes 1, 4 and 5 of the National Policy for Women of Samoa 2010–15 as they pertain to sex discrimination in employment and occupation. It also invites the Government to provide more information on the impact of such measures on employment and occupation, including statistical information disaggregated by sex for the public, private and informal sectors. The Committee further requests the Government to indicate any activities carried out in collaboration with workers’ and employers’ organizations in implementing the outcomes.

Article 3. Sexual harassment. The Committee notes the Government’s indication that relevant agencies function to ensure all persons are protected from sexual harassment in employment and occupation, including regular labour inspections conducted by the Ministry of Commerce, Industries and Labour (MCIL), as well as investigations by labour inspectors of cases reported by third parties. It also notes the Government’s indication that the Ombudsperson’s office has classified two categories of sexual harassment in the workplace that correspond to hostile environment and quid pro quo harassment, and that this classification has been considered by the courts and special tribunals. The Committee notes the Government’s indication that the Public Service Commission facilitates training to raise awareness of gender equality and sex-based discrimination in the world of work, that immediate action is taken by the Commission once sexual harassment issues are identified and that the Public Service Act of 2004 covers both quid pro quo and hostile environment sexual harassment. The Committee also notes the Anti-Harassment Policy published by the Ministry of Natural Resources and Environment in 2009, which includes sexual harassment as one of the prohibited forms of harassment in the Ministry and provides a complaints mechanism in which a Committee appointed by the CEO reviews allegations of harassment. Finally, the Committee notes that one court case has been filed for sexual harassment related to employment, with no such cases filed with the Office of the Ombudsperson. The Committee welcomes the measures taken by the Government as noted above, and invites the Government to provide more information and analysis on the impact of these measures in protecting all persons from sexual harassment in employment and occupation, including both quid pro quo and hostile working environment harassment. Such information may include statistical data disaggregated by sex on training and outreach, studies conducted to identify the forms of sexual harassment in the workplace, in the public and private sectors and, where possible, in the informal economy.

Persons with disabilities. The Committee notes the Government’s indication that the National Policy for Persons with Disabilities 2011–16 came into effect in 2011. It welcomes the measures taken by the Government to implement this policy, which is also highlighted in the mid-term review report of the policy, including: the signing of the United Nations Convention on the Rights of Persons with Disabilities in September 2014, the establishment of the Disability Taskforce and the formation of a Focal Point Unit for Persons with Disabilities in the Ministry of Women, Community and Social Development to coordinate all national activities and to implement national policies for persons with disabilities in collaboration with civil society actors, such as the Disabled Persons Organization (Nuanua O Le Alofa Inc. (NOLA)). It also notes the midterm review’s recommendation that analytical and statistical data must be systematically collected on the outcomes of the policy, including the accessibility of vocational training programmes. The Committee further notes the Government’s reference to a national inclusive education policy in the context of disability. Finally, the Committee notes that the Government does not provide information on how section 37 of the LERA of 2013 is enforced through the mechanisms set out within the Act itself. The Committee requests the Government to continue providing information on the further measures taken by relevant entities to implement the National Policy for Persons with Disabilities, including the Disability Taskforce and the Focal Point Unit for Persons with Disabilities. It also requests the Government to provide analytical and statistical data on the outcomes of Government measures under the national policy. The Committee further requests the Government to provide copies of the national inclusive education policy, and to provide more information on the measures taken under this scheme to implement the principles of the Convention. Finally, the Committee requests the Government to provide more information of how section 37 of the LERA is enforced in the case of claims of discrimination based on disability.

National equality policy regarding other grounds of discrimination under Article 2 of the Convention. The Committee once again invites the Government to indicate the 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.

Gender equality. For many years, the Committee has requested 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 taken to improve their participation and economic empowerment. It notes the Government’s indication that the political system under which only a chief (Matai) can run for election is an obstacle to the political participation of women and that, until a constitutional amendment is made to change this structure, interim measures are being implemented. It also notes the Government’s indication that legislative measures are in place so that at least five women are elected to the 49-member Parliament, and that training and seminars on the economic empowerment of women have been held. It also notes the Government’s indication that studies show an approximately equal number of women as men occupying executive and middle management positions in the public sector, and that, excluding the manual labour sector, the proportion of women working in the formal sector is close to that of men. The Committee notes, however, that the Government has not replied to its request to provide information on the mechanisms established for the distribution of land and on the proportion of land that has been distributed to women to allow them to engage in their traditional occupations or subsistence activities. The Committee requests the Government to provide more information on the interim measures mentioned by the Government to increase the representation of women among the “Matai”. It also requests the Government to provide copies of the reports that indicate equal participation of women and men in the formal sector as well as in entrepreneurship and commerce in general, as well as other studies with relevant statistical information. Finally, the Committee once again requests the Government to provide information on the mechanisms established for the distribution of lands and on the proportion of lands that have been distributed to women.

Vocational training. The Committee welcomes the measures taken by the Government for the implementation of the Strategic Policies and Plan, July 2006–June 2015, of the Ministry of Education, Sports and Culture, including the establishment of the Australia–Pacific Technical College, which provides vocational training to youth, the inclusion of vocational training programmes into secondary school curricula, the increase in the number of scholarships given by the Scholarships Committee, the establishment of the Youth Enterprise Programme and the establishment of the Samoan National Action Plan on Youth Employment. The Committee notes the Government’s recognition of the need for a distance/open learning policy and intention to develop a working conditions and entitlements manual or policy that would give effort to section 20 of the LERA of 2013. The Committee requests the Government to provide more information on the impact on gender equality in employment and occupation of the measures taken to implement the Strategic Policies and Plan, July 2006–June 2015, including statistical data disaggregated by sex. The Committee also requests the Government to provide more information on the measures taken to adopt a distance/open learning policy, and to develop a working conditions and entitlements manual or policy.

Protection of persons undertaking studies or training under scholarships. The Committee notes the Government’s indication that the term “employment” under section 2 of the LERA of 2013 does not cover, among others, persons engaged in education and vocational training. The Committee recalls that under Article 1(3) of the Convention, the term “employment” includes access to vocational training. The Committee requests the Government to provide a copy of the standard criteria published by the Scholarships Committee, as well as copies of other criteria determining the beneficiaries of vocational training. It also requests more information on how it is ensured that the standard criteria used in the selection process for vocational training and scholarship opportunities are protected in practice from discrimination, especially indirect discrimination, on all the grounds enumerated in Article 1(1)(a) of the Convention.

Equal employment opportunities in public service. The Committee notes the information provided by the Government on the measures taken to implement section 18(2)(g) of the Public Service Act on equal employment opportunities. It also notes that there have been no claims to the courts or administrative authorities relating to discrimination in the implementation of the Public Service Act. The Committee recalls that other measures exist to promote the principle of equality of opportunity, such as targets, quotas, equal employment opportunity plans, adaptation of the relevant facilities and the improvement of the collection of statistical information (see the 2012 General Survey, paragraph 755). The Committee requests the Government to provide information on any further measures taken by the Public Service Commission to enforce section 18(2)(g) of the Public Service Act to give effect to the principle of the Convention.

Application of the Convention. Monitoring and enforcement. Labour inspection. The Committee notes the Government’s indication that sections 2 and 20(2) of the LERA of 2013, which define discrimination and its protected grounds, have been implemented through customary practice though which common grounds of understanding and maintenance of good working relationships are applied. It also notes the Government’s indication that no claims have been filed with the courts or administrative authorities concerning cases of discrimination. The Committee notes that section 17 of the LERA of 2013 provides labour inspectors with powers to ensure compliance with the Act. In this regard, the Committee recalls that monitoring and enforcement of non-discrimination laws are an important aspect of determining whether there is effective implementation of the Convention, and that the absence of complaints is not an indicator of the absence of discrimination in practice, but is likely to indicate the lack of an appropriate legal framework, the lack of awareness of rights and the lack of confidence in, or absence of, practical access to procedures (see the 2012 General Survey, paragraphs 850, 868 and 870). The Committee requests the Government to provide more information on the measures taken by the MCIL to apply in practice sections 2 and 20(2) of the LERA through the labour inspection mechanism outlined under section 17 so that the principles of the Convention are realized, including statistical data, such as the number of complaints filed and their outcome. The Committee also requests the Government to further explain the meaning of the term “customary practice where common grounds of understanding and maintaining good working relationships are applied”.

Enforcement of the Public Service Act. The Committee notes from the Public Service Commission’s reply to its previous comment that the Public Service Act of 2004 provides for a grievance mechanism under section 55 which allows public service employees to seek help if they are not fairly treated in terms of recruitment and selection, and that appeals are taken up by the Board of Appeals in the court system, should the mediation process fail. It also notes from the Government’s report that there have been no cases or claims filed before the courts or administrative authorities regarding discrimination in the public service. The Committee requests the Government to provide more information on the application in practice of section 55 of the Public Service Act, including efforts to promote awareness of the grievance mechanism among the social partners. It also requests the Government to continue providing information on any administrative or judicial complaints filed by public servants under this provision.

Ombudsperson. The Committee notes with interest that the Convention is used as the basis for interpreting “human rights” under section 2 and Schedule 1 of the Ombudsperson (Komesina o Sulufaiga) Act of 2013. It also notes that Parts 4 and 5 of the Act mandates the Ombudsperson to combat all forms of discrimination through promoting public awareness, to inquire into and report on alleged violations of human rights through a special investigation unit, to monitor and promote compliance with international human rights law and to consult and cooperate with business and labour organizations. The Committee further notes section 40, which mandates the Ombudsperson to publish an annual human rights report. The Committee recalls that, in addition to legislation, proactive measures are required to address the underlying causes of discrimination and de facto inequalities resulting from discrimination that is deeply entrenched in traditional and social values, and emphasizes that it is essential to monitor the implementation of plans and policies in terms of their results and effectiveness with the collaboration with social partners (see the 2010 General Survey, paragraphs 856 and 858). The Committee requests the Government to provide more information on the measures taken to implement the Ombudsman Act of 2013, including claims processed by the special investigation unit, as well as the activities carried out in collaboration with workers’ and employers’ organizations.

Statistical data. Informal economy. The Committee notes the statistical data provided by the Government, which indicates that the total employment to population ratio of Samoa is 29.4 per cent, with men at 36.8 per cent and women at 21.9 per cent. The Committee notes that these figures suggest the existence of a sizable informal economy in which more women than men participate. The Committee recalls that where there is a large informal economy, more specific information, including statistics disaggregated by sex, is required on the employment situation of informal economy workers or on the specific measures taken to promote their access to training and employment opportunities, including measures to enable women to move from the informal to the formal economy (see the 2012 General Survey, paragraph 740). The Committee requests the Government to provide, if available, statistical information disaggregated by sex regarding the employment situation of informal economy workers. It also requests information on the specific measures taken, if any, to promote access to training and employment opportunities for those engaged in the informal economy, including measures enabling women to move from the informal to the formal economy.