SEV’s Position on ILO’s BROWN REPORT “Ending violence and harassment in the world of work”

A. General Statement

Employers are committed to playing their role in eliminating violence and harassment from the workplace, and taking action individually and jointly with others to achieve that.

Violence and harassment occur throughout society, not only at the workplace. However, the nature of work and workplaces can offer perpetrators opportunities to harass or behave violently with significant negative consequences for individuals, groups and the business as a whole.

Employers should take reasonable steps to ensure that such misbehaviour does not take place within their sphere of control. The causes of violent and other forms of unacceptable human behavior are complex and multifaceted and cannot be solely addressed at the level of the workplace.

Workplace measures are therefore not adequate in themselves to suppress all facets of violence and harassment in society. They can only be complementary to measures taken in all other areas that influence the behaviour of individuals, including civil and criminal law, education, and culture, to name a few. At the same time, reasonable workplace measures may be a key component of overall efforts to reduce violence and harassment in communities.

Effectiveness is the key consideration. Measures intended to prevent and address violence and harassment should be outcomes focused in all domains, including at the workplace.

B. Specific Comments

At its 107th ILC, the ILO held the first discussion on “Violence against women and men in the world of work” with a view to draft an instrument/s on violence and harassment under a two-year discussion procedure. The proposed instruments will be submitted for adoption in 2019, on the occasion of the ILO centenary. Throughout the discussion the Employers reiterated their commitment to take effective action in this area, and to work towards an international standard that can be universally supported and widely ratified by Governments.

However, the result of the first ILC discussion on violence and harassment concluded with a text that is legally unclear, too prescriptive and does not enable practical implementation in diverse national and enterprise contexts. Too many Governments raised these concerns in their final remarks to overlook them. The draft instruments require substantive changes in order to attract wide ratification and thus, deliver the necessary change to protect all persons from workplace violence and harassment.

In our view, the Employers’ main concerns, which are summarized below, should also be shared by all Governments as the legal implications set out throughout the proposed conclusions will apply equally to both public and private employers:

• The merging of the terms “violence and harassment” in a broad, single definition creates legal uncertainty and represents a barrier to ratification for Governments (page 3).
• The definition of “worker” contradicts most national laws and includes groups which are outside the control of public and private employers because they are not in workplaces or performing work (page 5).
• The definition of “world of work” encompasses situations and spaces that are out of reach and control of employers (page 6).
• Any employer responsibilities must be appropriate to the diverse range of businesses that would be required to implement them, including small and family businesses (page 6).
• The exclusion of LGBTI persons from the list of persons who are protected is questionable (page 7).
• Protection from violence and harassment needs to be equally extended to public and private employers without any ambiguity, in any work-related context, including during industrial action (page 7).
• Action taken by employers to support victims of domestic violence can only be on a voluntary basis as these situations are complex and occur outside the employer’s control. The text should not impose legal obligations on private employers in that respect (page 8).
• Greater clarity is required to ensure that workers and their representatives have responsibilities to refrain from violence and harassment as the attribution of responsibilities goes exclusively to employers and governments (page 8).
• The text requires member States to encourage collective bargaining “at all levels”, which remains the responsibility of the national social partners. This introduces unnecessary uncertainty as there are different practices that apply at each national level (page 8).

We firmly believe that the ILC 2019, in Geneva, should provide an opportunity to address these concerns. Given the importance of the subject and the critical moment in history for the ILO, a text that is not widely ratified because it is poorly defined and legally unclear is unacceptable. SEV will remain highly committed to this issue to ensure the broadest possible support to an effective instrument in addressing violence and harassment in the workplace.

C.  Additional Comments on article 1a, possible new article after article 4, article 6 of the Convention

Following your statement during the meeting of the Higher Labor Council on the promotion and application of international labor standards, which was held on Tuesday 16 October 2018, we would like to share our position regarding article 1a, possible new article after article 4, article 6 of the Convention on ending violence and harassment in the world of work.

1)  Article 1a of the Convention

The current definition should be viewed as the result of a stalemate during the discussions, and not an agreement

• A single definition for two distinct concepts does not provide leeway to accommodate national laws but on the contrary, creates a significant barrier to wide ratification and implementation. Instead of flexibility, a merged definition creates massive ambiguity and leaves no concrete directions for countries to address the issue properly.
• Without clear definitions of violence and harassment, governments and employers will face unnecessary challenges to take appropriate measures for each situation: It’s unclear how public and private employers can identify the hazards of violence and harassment and take the necessary measures to prevent and control them, as stipulated in the operative part of the Convention, when there is no clear guidance as to what could be reasonably understood to fall under these two concepts.
• The merged definition will also require most Governments to undertake a huge amount of work assessing their ability to ratify the proposed Convention and modifying their current legislation to comply with it as almost no Government has a similar and a single definition for violence and harassment in its national laws.

Proposal

In order to avoid unnecessary ratification barriers, as it has been suggested, is to have separate definitions for violence and harassment.

i)The term violence shall mean all acts or threats exerted through coercion or arbitrary deprivation of liberty that have the purpose or reasonably foreseeable effect of causing physical, psychological, or sexual harm or suffering.

1. ii) The term harassment should be understood as any form of unwanted comment or conduct with the purpose or reasonably foreseeable effect of creating an intimidating, degrading or offensive environment.

2)  Possible new article after article 4 of the Convention

Possible new Article 4 is welcomed as it recognizes that the various actors have different roles and responsibilities and seeks to promote coordination and cooperation however it still does not go far enough to resolve the confusion around the circumstances in which responsibilities under the proposed instrument will be enlivened. Employers insist that Article 9 must refer to “workplace” instead of “world of work” as this clause could end up denying protection to the victims of violence and harassment Convention should be drafted so that they can be widely ratified. In addition the wording must ensure that the different capacities and specific constraints of all actors are recognized and that roles and responsibilities may vary according to each situation.

Proposal

In adopting and implementing an inclusive, integrated approach and gender-responsive approach for the elimination of violence and harassment in the world of work, members shall:

1. a) Recognize that governments, and employers and workers and their respective representatives, have different capacities and constraints, as well as different roles and responsibilities, in preventing and addressing violence and harassment in the world of work, and that these may vary depending on the situation
2. b) Promote coordination and cooperation between them, taking into account their complementary roles.

3)  Article 6 of the Convention

SEV aligns its position to the initial position of Employers’ group, to remove the specific listing with the aim to be less prescriptive and not to be exclusionary. The Employers’ Group firmly supports the UN-recognized principle that all persons should be protected from violence and harassment, including LGBTI persons. Any ILO instrument on violence and harassment should reflect that established principle. In that respect, SEV supports that the listing of this vulnerable group is maintained in the Recommendation.

Proposal

Each Member shall adopt laws, regulations and policies ensuring the right to equality and non-discrimination in  employment and occupation including for groups in situation of vulnerability that are disproportionately affected by violence and harassment in the world of work.