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Convention Concerning the Elimination of Violence and Harassment in the World of Work (Int'L Lab. Org.)

Published online by Cambridge University Press:  19 December 2019

Julinda Beqiraj
Julinda Beqiraj*
Affiliation:
MauriceWohl Senior Research Fellow in European Law, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law (BIICL).
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Extract

On June 21, 2019, the International Law Organization (ILO) adopted the groundbreaking Convention No. 190 concerning the Elimination of Violence and Harassment in the World of Work (C190) and the accompanying Recommendation on the same topic (R206). ILO conventions are legally binding instruments, once ratified by states, while recommendations provide advice and guidance. The result of two years of negotiations by ILO members—governments, workers’ representatives, and employers’ organizations—is an international treaty setting out standards that are aimed at ending violence and harassment in the world of work. In its “Women, Business and the Law 2018” study, the World Bank reports that there is a lack of legal protection against harassment at work in 70 percent of the countries in the Middle East and North Africa, half of the economies in East Asia and the Pacific, and one-third of those in Latin America and the Caribbean, affecting an estimated 500 million working-age women.

Information

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 6 , December 2019, pp. 1167 - 1176
Copyright
Copyright © 2019 by The American Society of International Law

Introduction

On June 21, 2019, the International Law Organization (ILO) adopted the groundbreaking Convention No. 190 concerning the Elimination of Violence and Harassment in the World of Work (C190) and the accompanying Recommendation on the same topic (R206).Footnote 1 ILO conventions are legally binding instruments, once ratified by states, while recommendations provide advice and guidance. The result of two years of negotiations by ILO members—governments, workers’ representatives, and employers’ organizations—is an international treaty setting out standards that are aimed at ending violence and harassment in the world of work. In its “Women, Business and the Law 2018” study, the World Bank reports that there is a lack of legal protection against harassment at work in 70 percent of the countries in the Middle East and North Africa, half of the economies in East Asia and the Pacific, and one-third of those in Latin America and the Caribbean, affecting an estimated 500 million working-age women.

The topic has been brought into the spotlight at the global level, with the adoption of the Sustainable Development Goals (SDGs) in 2015, which call for the achievement of decent work for all women and men (SDG 8.5); the reduction of inequality (SDG 10); the achievement of gender equality and empowerment for all women and girls, including through the elimination of all forms of violence against them (SDG 5); and access to justice for all (SDG 16). A few years later, the #MeToo movement began raising awareness on the pervasiveness of the phenomenon of violence and harassment in the workplace. Thus, the ILO Convention No. 190, adopted on the centenary of the Organization, comes at a key moment and sets out unambiguously that violence and harassment are unacceptable and the antithesis of decent work. This is reflected in the broad endorsement of the Convention by ILO members, including Uganda and Namibia, leading the African group of states; France, leading the European Union; and Canada, New Zealand, the Philippines, and many Latin American and Caribbean states. The Convention was adopted with 439 votes cast in favor, 7 against (with the exception of Malaysia, all from employers’ organizations), and 30 abstentions. It will enter into force twelve months after two member states have ratified it.

Innovations of the Convention

The new international labor standard aims to protect workers by recognizing that violence and harassment in the world of work “can constitute a human rights violation or abuse,” “is a threat to equal opportunities, [and] is unacceptable and incompatible with decent work”; that “Members have an important responsibility to promote an environment of zero tolerance”; and that “all actors in the world of work must refrain from, prevent and address violence and harassment.”Footnote 2 The Convention is a groundbreaking instrument in the elimination of violence and harassment in the world of work from different perspectives.

First, C190 closes an important regulatory gap in addressing violence and harassment under both ILO and UN international instruments. Numerous ILO standards refer to specific forms of violence and harassment; however, these instruments do not define such conduct or provide guidance on how to address the problem.Footnote 3 Similarly, the basic and general provisions regarding the right to work contained in the International Covenant on Economic Social and Cultural Rights (ICESCR) and the provisions referring to violence and harassment in the world of work contained in UN conventions regarding specific groups of people (women, persons with disabilities, migrant workers) adopt a targeted approach that leaves an important protection gap for the vast majority of workers. By contrast, ILO C190 is a dedicated international standard that sets out a fundamental set of principles for addressing violence and harassment in the world of work, adopts an inclusive and integrated approach, and provides direction on how to implement these principles.

Second, ILO C190 has a very broad scope of application as it embraces an expanded understanding of what is covered (definition of violence and harassment), who is protected, where (the concept of workplace), and when. The Convention sets out an encompassing definition of violence and harassment as “a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment” (Article 1). As regards the personal scope of application, the Convention covers not only workers and employees as defined by national law and practice, but also “persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer” (Article 2). The treaty also recognizes that practices of violence and harassment go beyond the physical workplace; it thus sidesteps the usual jurisdictional argument used in workplace violence and harassment cases. It covers practices “occurring in the course of, linked with or arising out of work” in places where the worker is paid, takes a rest or meal break, or uses sanitary, washing, and changing facilities; during work-related trips or social activities; through work-related communications, including those enabled by ICT; in employer-provided accommodation; and even when commuting to and from work.Footnote 4 As such, ILO C190 is a revolutionary instrument, as it covers and anticipates the broad array of employment arrangements in the world of work today.

Third, the new ILO Convention recognizes that vulnerable groups are in a situation of greater exposure to violence and harassment and calls for states to ensure the right to equality and nondiscrimination in employment and occupation (Article 6). Through a visionary approach, the Convention also acknowledges the negative effects of domestic violence on employment, productivity, and health and safety. It sets out standards for governments to mitigate such effects, which include flexible working arrangements and leave for domestic violence survivors.Footnote 5

Fourth, the Convention provides for an extensive range of state obligations, which contextualize and qualify the general obligation to “respect, promote and realize the fundamental rights and principles at work” for the purpose of preventing and eliminating violence and harassment in the world of work.Footnote 6 They include the obligation to: adopt laws and regulations to define and prohibit violence and harassment in the world of work, in compliance with the definition provided in the Convention;Footnote 7 take all appropriate measures to prevent such practices and effectively protect workers;Footnote 8 and adopt, so far as is reasonably practicable, a workplace policy on violence and harassment, identify hazards and assess risks of violence and harassment, and provide information and training on these issues.Footnote 9 The ILO R206 clarifies that the workplace risk assessment should take into account the involvement of third parties, such as clients, customers, and service providers.Footnote 10

Fifth, as regards possible remedies, ILO C190 commits ratifying states to design a comprehensive set of easy access and effective remedies for persons subject to violence and harassment in the world of work, including dispute resolution mechanisms internal and external to the workplace, inside and outside courts; protection against victimization or retaliation; shifting the burden of proof when appropriate; effective inspection and investigation procedures; legal, medical, and administrative support measures; as well as compensation.Footnote 11

Beyond Domestic Remedies

Beyond the possible remedies to be provided at the national level, the fact that comprehensive rules on the elimination of violence and harassment in the world of work were adopted by the ILO allows for the use of the organization's institutional remedies under the ILO Constitution, such as the regular supervisory system and the special procedures. The ILO regular supervisory system hinges on periodic reports submitted by member states regarding the measures taken to implement the conventions they have ratified.Footnote 12 A technical body, the Committee of Experts on the Application of Conventions and Recommendations (CEACR), examines such reports and may address direct requests to the concerned state, followed by observations, which are ultimately included in the annual report of the CEACR to the ILO General Conference. It should also be noted that under the ILO Constitution, member states have the obligation to bring any convention or recommendation adopted by the International Labour Conference, within a period of twelve to eighteen months, before the competent national authority for enactment of domestic legislation or other action. This means that the issue will gain visibility at the national level even before formal ratification. The ad hoc procedures, by contrast, are activated on an adversarial basis and deal with issues of noncompliance. They range from the soft and politically oriented representation procedure,Footnote 13 which may be started by industrial associations, to the quasi-judicial complaints procedure,Footnote 14 open to member states, to the Governing Body, and to individual delegates to the General Conference, through which even the International Court of Justice may be involved as a last resort. If member states follow up on their commitment to the cause of the elimination of violence and harassment in the world of work by ratifying C190, the ILO complaints procedure would allow third states to speak up against violence and harassment practices occurring beyond their borders.

In the words of Shauna Olney, Chief of the Gender, Equality and Diversity Branch at the ILO, “Changing attitudes is never easy but is essential if we are to eliminate violence and harassment from the world of work. The adoption of strong instruments like this sends a powerful message. It makes the invisible visible, acknowledging the pervasiveness and unacceptability of violence and harassment.”Footnote 15

CONVENTION CONCERNING THE ELIMINATION OF VIOLENCE AND HARASSMENT IN THE WORLD OF WORK (INT'L LAB. ORG.)

This text was reproduced and reformatted from the text available at the International Labour Organization website (visited October 2, 2019), https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_711570.pdf.

International Labour Conference

Conférence internationale du Travail

CONVENTION 190

CONVENTION

CONCERNING THE ELIMINATION OF VIOLENCE

AND HARASSMENT IN THE WORLD OF WORK,

ADOPTED BY THE CONFERENCE

AT ITS ONE HUNDRED AND EIGHTH SESSION,

GENEVA, 21 JUNE 2019

CONVENTION 190

CONVENTION

CONCERNANT L'ÉLIMINATION DE LA VIOLENCE

ET DU HARCÉLEMENT DANS LE MONDE DU TRAVAIL,

ADOPTÉE PAR LA CONFÉRENCE

Á SA CENT HUITIÉME SESSION,

GENÉVE, 21 JUIN 2019

Convention 190

CONVENTION

CONCERNING THE ELIMINATION OF VIOLENCE

AND HARASSMENT IN THE WORLD OF WORK

The General Conference of the International Labour Organization,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 108th (Centenary) Session on 10 June 2019, and

Recalling that the Declaration of Philadelphia affirms that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity, and

Reaffirming the relevance of the fundamental Conventions of the International Labour Organization, and

Recalling other relevant international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the Convention on the Rights of Persons with Disabilities, and

Recognizing the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment, and

Recognizing that violence and harassment in the world of work can constitute a human rights violation or abuse, and that violence and harassment is a threat to equal opportunities, is unacceptable and incompatible with decent work, and

Recognizing the importance of a work culture based on mutual respect and dignity of the human being to prevent violence and harassment, and

Recalling that Members have an important responsibility to promote a general environment of zero tolerance to violence and harassment in order to facilitate the prevention of such behaviours and practices, and that all actors in the world of work must refrain from, prevent and address violence and harassment, and

Acknowledging that violence and harassment in the world of work affects a person's psychological, physical and sexual health, dignity, and family and social environment, and

Recognizing that violence and harassment also affects the quality of public and private services, and may prevent persons, particularly women, from accessing, and remaining and advancing in the labour market, and

Noting that violence and harassment is incompatible with the promotion of sustainable enterprises and impacts negatively on the organization of work, workplace relations, worker engagement, enterprise reputation, and productivity, and

Acknowledging that gender-based violence and harassment disproportionately affects women and girls, and recognizing that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, multiple and intersecting forms of discrimination, and unequal gender-based power relations, is essential to ending violence and harassment in the world of work, and

Noting that domestic violence can affect employment, productivity and health and safety, and that governments, employers’ and workers’ organizations and labour market institutions can help, as part of other measures, to recognize, respond to and address the impacts of domestic violence, and

Having decided upon the adoption of certain proposals concerning violence and harassment in the world of work, which is the fifth item on the agenda of the session, and

Having determined that these proposals shall take the form of an international Convention, adopts this twenty-first day of June of the year two thousand and nineteen the following Convention, which may be cited as the Violence and Harassment Convention, 2019:

I. Definitions

Article 1

1. For the purposes of this Convention:

  1. (a) the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;

  2. (b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.

2. Without prejudice to subparagraphs (a) and (b) of paragraph 1 of this Article, definitions in national laws and regulations may provide for a single concept or separate concepts.

II. Scope

Article 2

1. This Convention protects workers and other persons in the world of work, including employees as defined by national law and practice, as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer.

2. This Convention applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas.

Article 3

This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:

  1. (a) in the workplace, including public and private spaces where they are a place of work;

  2. (b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;

  3. (c) during work-related trips, travel, training, events or social activities;

  4. (d) through work-related communications, including those enabled by information and communication technologies;

  5. (e) in employer-provided accommodation; and

  6. (f) when commuting to and from work.

III. Core principles

Article 4

1. Each Member which ratifies this Convention shall respect, promote and realize the right of everyone to a world of work free from violence and harassment.

2. Each Member shall adopt, in accordance with national law and circumstances and in consultation with representative employers’ and workers’ organizations, an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. Such an approach should take into account violence and harassment involving third parties, where applicable, and includes:

  1. (a) prohibiting in law violence and harassment;

  2. (b) ensuring that relevant policies address violence and harassment;

  3. (c) adopting a comprehensive strategy in order to implement measures to prevent and combat violence and harassment;

  4. (d) establishing or strengthening enforcement and monitoring mechanisms;

  5. (e) ensuring access to remedies and support for victims;

  6. (f) providing for sanctions;

  7. (g) developing tools, guidance, education and training, and raising awareness, in accessible formats as appropriate; and

  8. (h) ensuring effective means of inspection and investigation of cases of violence and harassment, including through labour inspectorates or other competent bodies.

3. In adopting and implementing the approach referred to in paragraph 2 of this Article, each Member shall recognize the different and complementary roles and functions of governments, and employers and workers and their respective organizations, taking into account the varying nature and extent of their respective responsibilities.

Article 5

With a view to preventing and eliminating violence and harassment in the world of work, each Member shall respect, promote and realize the fundamental principles and rights at work, namely freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation, as well as promote decent work.

Article 6

Each Member shall adopt laws, regulations and policies ensuring the right to equality and non-discrimination in employment and occupation, including for women workers, as well as for workers and other persons belonging to one or more vulnerable groups or groups in situations of vulnerability that are disproportionately affected by violence and harassment in the world of work.

IV. Protection and prevention

Article 7

Without prejudice to and consistent with Article 1, each Member shall adopt laws and regulations to define and prohibit violence and harassment in the world of work, including gender-based violence and harassment.

Article 8

Each Member shall take appropriate measures to prevent violence and harassment in the world of work, including:

  1. (a) recognizing the important role of public authorities in the case of informal economy workers;

  2. (b) identifying, in consultation with the employers’ and workers’ organizations concerned and through other means, the sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to violence and harassment; and

  3. (c) taking measures to effectively protect such persons.

Article 9

Each Member shall adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender-based violence and harassment, and in particular, so far as is reasonably practicable, to:

  1. (a) adopt and implement, in consultation with workers and their representatives, a workplace policy on violence and harassment;

  2. (b) take into account violence and harassment and associated psychosocial risks in the management of occupational safety and health;

  3. (c) identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives, and take measures to prevent and control them; and

  4. (d) provide to workers and other persons concerned information and training, in accessible formats as appropriate, on the identified hazards and risks of violence and harassment and the associated prevention and protection measures, including on the rights and responsibilities of workers and other persons concerned in relation to the policy referred to in subparagraph (a) of this Article.

V. Enforcement and remedies

Article 10

Each Member shall take appropriate measures to:

  1. (a) monitor and enforce national laws and regulations regarding violence and harassment in the world of work;

  2. (b) ensure easy access to appropriate and effective remedies and safe, fair and effective reporting and dispute resolution mechanisms and procedures in cases of violence and harassment in the world of work, such as:

    1. (i) complaint and investigation procedures, as well as, where appropriate, dispute resolution mechanisms at the workplace level;

    2. (ii) dispute resolution mechanisms external to the workplace;

    3. (iii) courts or tribunals;

    4. (iv) protection against victimization of or retaliation against complainants, victims, witnesses and whistle-blowers; and

    5. (v) legal, social, medical and administrative support measures for complainants and victims;

  3. (c) protect the privacy of those individuals involved and confidentiality, to the extent possible and as appropriate, and ensure that requirements for privacy and confidentiality are not misused;

  4. (d) provide for sanctions, where appropriate, in cases of violence and harassment in the world of work;

  5. (e) provide that victims of gender-based violence and harassment in the world of work have effective access to gender-responsive, safe and effective complaint and dispute resolution mechanisms, support, services and remedies;

  6. (f) recognize the effects of domestic violence and, so far as is reasonably practicable, mitigate its impact in the world of work;

  7. (g) ensure that workers have the right to remove themselves from a work situation which they have reasonable justification to believe presents an imminent and serious danger to life, health or safety due to violence and harassment, without suffering retaliation or other undue consequences, and the duty to inform management; and

  8. (h) ensure that labour inspectorates and other relevant authorities, as appropriate, are empowered to deal with violence and harassment in the world of work, including by issuing orders requiring measures with immediate executory force, and orders to stop work in cases of an imminent danger to life, health or safety, subject to any right of appeal to a judicial or administrative authority which may be provided by law.

VI. Guidance, training and awareness-raising

Article 11

Each Member, in consultation with representative employers’ and workers’ organizations, shall seek to ensure that:

  1. (a) violence and harassment in the world of work is addressed in relevant national policies, such as those concerning occupational safety and health, equality and non-discrimination, and migration;

  2. (b) employers and workers and their organizations, and relevant authorities, are provided with guidance, resources, training or other tools, in accessible formats as appropriate, on violence and harassment in the world of work, including on gender-based violence and harassment; and

  3. (c) initiatives, including awareness-raising campaigns, are undertaken.

VII. Methods of application

Article 12

The provisions of this Convention shall be applied by means of national laws and regulations, as well as through collective agreements or other measures consistent with national practice, including by extending or adapting existing occupational safety and health measures to cover violence and harassment and developing specific measures where necessary.

VIII. Final provisions

Article 13

The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.

Article 14

1. This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered with the Director-General of the International Labour Office.

2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification is registered.

Article 15

1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention within the first year of each new period of ten years under the terms provided for in this Article.

Article 16

1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organization of the registration of all ratifications and denunciations that have been communicated by the Members of the Organization.

2. When notifying the Members of the Organization of the registration of the second ratification that has been communicated, the Director-General shall draw the attention of the Members of the Organization to the date upon which the Convention will come into force.

Article 17

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and denunciations that have been registered in accordance with the provisions of the preceding Articles.

Article 18

At such times as it may consider necessary, the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 19

1. Should the Conference adopt a new Convention revising this Convention, then, unless the new Convention otherwise provides:

  1. (a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 15 above, if and when the new revising Convention shall have come into force;

  2. (b) as from the date when the new revising Convention comes into force, this Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 20

The English and French versions of the text of this Convention are equally authoritative.

The foregoing is the authentic text of the Convention duly adopted by the General Conference of the International Labour Organization during its One hundred and eighth Session which was held at Geneva and declared closed the twenty-first day of June 2019.

IN FAITH WHEREOF we have appended our signatures this day of June 2019:

The President of the Conference,

The Director-General of the International Labour Office,

References

ENDNOTES

1 Convention Concerning the Elimination of Violence and Harassment in the World of Work, 108th Conference Session, Geneva, June 21, 2019 [hereinafter C190]; Recommendation Concerning the Elimination of Violence and Harassment in the World of Work, 108th Conference Session, Geneva, June 21, 2019 [hereinafter R206].

2 Id. pmbl., ¶ 6.

3 For an overview, see ILO Report V(1) Ending Violence and Harassment Against Women and Men in the World of Work, International Labour Conference, 107th Session 2018, Section 3.1.

4 C190, supra note 1, art. 3.

5 Id. art. 10(f); R206, supra note 1, ¶ 18.

6 C190, supra note 1, art. 5.

7 Id. art. 7.

8 Id. art. 8.

9 Id. arts. 9, 11.

10 R206, supra note 1, ¶ 8.b.

11 C190, supra note 1, art. 10; R206, supra note 1, ¶ 14.

12 International Labour Organization, Constitution of the International Labour Organisation, Apr. 1, 1919, arts. 19, 22–23.

13 Id. arts. 24–25.

14 Id. arts. 26–34.

15 ILO, “ILO Convention on Violence and Harassment: Five Key Questions” (June 28, 2019), https://www.ilo.org/global/aboutthe-ilo/newsroom/news/WCMS_711891/lang-en/index.htm.