Violence and harassment at work: an international battle we need to fight

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Mercedes Balado Bevilacqua
MBB Abogados, Buenos Aires
mercedes.balado@baladolaw.com.ar

Analia V Duran
MBB Abogados, Buenos Aires
analia.duran@baladolaw.com.ar

Introduction

The term #MeToo started being used in 2017, following serious denunciations of abuse and sexual harassment in the US entertainment industry. This term was applied, and is currently used to support women who have been sexually abused or harassed, and to help women who suffered any type of harassment to be encouraged to denounce the reprehensible situation they experienced.

In Argentina the phrase #MeToo was replaced by #NoEsNo and it has been used to make visible the severity, diversity and impact of the different forms of violence, and also to support those who suffered sexual abuse in social networks. Moreover, there is another, stronger feminist movement which originated in Argentina called #NiUnaMenos, which has been spreading throughout Latin America since 2015. Apart from Argentina, demonstrations in support of #NiUnaMenos have taken place in countries such as Uruguay, Ecuador, Peru, Colombia, Chile and Italy.

This sort of fight against gender-based violence and discrimination reflects on the work environment, as we have been attempting to raise awareness for many years, through articles and panels at different organisations.

This article will explore how the recent Convention No 190 issued by the International Labour Organization (ILO) adopted in June 2019 and its Recommendation No 206 have approached this issue. It will also analyse whether the way in which the ILO has addressed this relevant international matter has acted as an effective tool to introduce conscious regulations in different countries aimed at fighting harassment and violence in the workplace.

Brief considerations on regulations established by the ILO

The ILO works to promote employment rights, fostering decent employment opportunities, improving social protection and strengthening dialogue in employment-related matters. It regulates these issues particularly through the following conventions, which have been ratified by the Argentine Republic, and are therefore part of statutory law: (1) Convention No 111/58 on discrimination (employment and occupation); (2) Convention No 190/19 on violence and harassment, and (3) Convention No 100/51 on equal remuneration.

C190 is the first international treaty to recognise the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment. It is also important to highlight that although 19 countries have ratified C190, only three current members of the EU (Greece Italy and Spain) have ratified the convention. From referred countries in Europe, C190 is only in force in Greece, while Spain, and Italy and the UK await enforcement in late 2022 or in 2023. In Latin America, C190 has been ratified and is in force in only Argentina and Uruguay.

Governments that ratify C190 will be required to introduce the necessary laws and policy measures to prevent and address violence and harassment in at work. The C190 represents an historic opportunity to shape a future of work, free from violence, and rooted in dignity and respect.

The ILO is currently embarking on a global campaign to build support for C190 and has invited stakeholders and civil society players to become involved, as its goal is to have C190 ratified and implemented worldwide. However, certain provisions could interfere with this goal.

One positive contribution is that C190 has provided definitions of: (1) ‘violence and harassment’ as in a workplace-related context, referring to a range of unacceptable behaviours and practices, or threats, 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) ‘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.

Another positive contribution is that it aims to protect workers and other persons in the world of work, including employees as defined by national law, as well as persons working (irrespective of their contractual status), persons in training, interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants and individuals exercising the authority, duties or responsibilities as employer. It also states that it applies to all sectors, private and public, in all areas (rural and urban) and all economies.

On the one hand it is helpful that C190 within the working scenario includes all players, whether or not they are in an employment relationship, including, independent contractors and trainees and persons who are rendering services at the employer’s establishment. It could therefore be concluded that C190 has a broad scope of application and protects everyone who shares the same working space from violence or harassment.

On the other, C190’s wide scope may cause confusion in countries, such as Argentina where employment rights are already strongly protected and regulated. This may imply a mix between labour and civil regulations and provide a covert argument for those attempting to take advantage of protective regulations and not in an employment relationship. The broad scope of C190 raises both awareness and confusion by extending its framework to situations of violence and harassment outside of the workplace. These include incidents which may take place when commuting to and from work, where the employer has no authority or possibility of putting policies in place, and is clearly outside the sphere of employment. Consequently, this may create obstacles to enacting national laws in line with C190, as it will be difficult to enact employment regulations aimed to apply outside of the workplace.

A positive contribution is obviously the core principles that C190 brings about as a way of raising awareness of the different means through which each member that ratifies the Convention shall respect, promote and realise everyone’s right to a world of work, free of violence and harassment. Suggested approaches to members ratifying C190 include: (1) banning violence and harassment in law; (2) enacting policies which address violence and harassment; (3) adopting a comprehensive strategy to implement measures that prevent and combat violence and harassment; (4) establishing or strengthening enforcement of monitoring mechanisms; (5) ensuring access to remedies and support for victims; (6) providing sanctions; (7) developing tools, guidance, education and training, and raising awareness in accessible formats as appropriate; and (8) ensuring effective means of inspection and investigation of cases of violence and harassment through competitive bodies.

In this way, C190 offers a wide range of possibilities and ideas to member countries that have ratified it to align their national regulations with C190 directives. Having stronger and more specific laws, including collective bargaining agreements, addressing harassment and violence in the workplace will contribute to companies enacting policies which prevent, combat, manage, handle and solve situations of violence and/or harassment in the workplace in line with Argentine employers’ duty of safety at work.

In order to achieve the above goals, member countries must bring awareness not only to employers but also, administrative authorities, such as Ministry of Labour, trade unions and other workers’ representatives.

C190 provides special attention to giving guidance, training and awareness-raising. In this sense, each member in consultation with employers and workers’ representatives shall ensure that the following are undertaken:

• violence and harassment in the world of work is addressed through relevant national policies, such as those regarding occupational safety and health, equality and non-discrimination, and migration;
• employers and workers and their organisations, 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
• initiatives, including awareness-raising campaigns.

It is important to be aware that national laws and/or collective bargaining agreements must be enacted together with the correct and efficient promotion of training programmes in order to raise awareness and prevent any violence and harassment within society and, especially within the workplace. It is therefore essential to implement both the general directives of C190. We believe that putting human resources policies in place which address this matter together with training programmes is an essential tool in assisting the enforcement of national laws that need to be enacted addressing violence and harassment within the world of work.

R206 provides for enforcement, remedies and assistance recommendations which may be of considerable help when drawing up legislation, training programmes and/or human resources policies. The support, services and remedies for victims of gender-based violence and harassment should include measures such as:

• ​​​​​​support to help victims re-enter the labour market;
• counselling and information services, in an accessible manner as appropriate;
• 24-hour hotlines;
• emergency services;
• medical care and treatment and psychological support;
• crisis centres, including shelters; and
• specialised police units or specially trained officers to support victims.

An important matter is that both, C190 and R206 address, is that members who ratify C190 must also have ratified ILO Convention on Freedom of Association and Protection of the Right to Organise Convention (No 87) and the Right to Organise and Collective Bargaining Convention (No 98). This is because it is essential to include violence and harassment provisions in collective bargaining agreements and meet consensus with all players of the labour arena.

Legal framework in Argentina

Argentina has ratified ILO Conventions Nos 97, 98 and C190. C190 is only in force in Argentina, Uruguay, Ecuador, Fiji, Greece, Mauritius Namibia, and Somalia. It may be said that ILO’s hope of enforcement has been disappointing due to the small number of countries which have adopted C190. One reason could be the difficulty represented by the broad scope of application that C190, in certain cases, where civil and employment relationships make it difficult to enact national labour laws and collective bargaining agreements in line with C190 and/or for employers to put in place human resources policies within companies that respect the C190 and R206 provisions in full.

To date, Argentina has not enacted a law that specifically address violence and harassment in the workplace.

Apart from constitutional principles, adopted international treaties and national laws which provide for non-discrimination and equal pay principles, which have been addressed in an article for this newsletter in 2021, we now focus on analysing the actions Argentina has taken in terms of the enactment of specific laws and regulations after ratifying C190 (2021).

Sadly, no actions have yet been taken.

Instead, Argentina currently relies on 2009 Law No 26,485, ‘Integral Protection of Women’s Act’. This Act, establishes that violence against women is understood as ‘any conduct, action or omission occurring in the public or private industries or spheres, that is, either directly or indirectly, based on an unequal power relationship, affecting a woman’s life, freedom, dignity, physical, psychological, sexual, economic or pecuniary integrity, as well as her personal safety.’

Focussing on the workplace, the Office of Assistance in Violence at Work (OVAL) uses the definition provided above and adds that violence at work takes place when the harm is caused to an employee, by means of a threat or a consummated action. In addition, the OVAL adds that ‘Said violence includes gender violence, psychological, moral or sexual harassment in the workplace, and it can come from superiors, people of the same rank or dependents.’ In short, violence at work is an expression of abuse of power that is meant to seclude or subjugate someone.

However, disregarding the number of national laws, treaties, policies or actions from the Ministry of Labour which try to prevent, manage and provide solutions to victims of violence and harassment in the workplace, Argentina still lacks a specific regulation that may encompass provisions and recommendations dictated by the ILO. Current regulations and measures only address the problem halfway without providing means of prevention, management or regulation. There are also almost no provisions in collective bargaining agreements which address this issue and there is limited action from employees’ representatives towards promoting protection against violence and harassment.

Perhaps, we find more human resources policies from private companies, specially, those with international background and/or headquarters that put in place efficient policies and hot lines more in line with R206 to prevent, report and handle any hostile situation within the workplace with an accurate investigation process, and prevention measures in place.

The role of labour courts

In Argentina there is case law in which labour courts have taken C190 into account in their rulings, pointing out the following relevant matters:

• C190 is an unavoidable milestone and as part of international law, it does not recognise national borders.
• Eventual silence of judiciary on harassment and violence at work would not only violate clear legal mandates but could imply liability of the Argentine State for failing to comply with international treaties that determine preventive measures and solutions.
• Judges considered the existence of training courses on violence and gender perspective essential in providing employees, especially those management, with the necessary tools to improve interpersonal relations at employer premises, and consequently prevent situations of violence. The Labour Court ruling therefore included a compulsory training for employees.
• The Court stressed that the judiciary is part of a change in culture and must promote the eradication of patterns that perpetuate violence, pestering and harassment.

Conclusion: prevention and the future

Few jurisdictions having C190 in force, and the lack of enactment of specific laws after ratification on an issue of worldwide relevance such as violence and harassment, demands attention to discover why and provide solutions to advance in the proliferation of this treaty, so that in the future the situation may be much improved.

The problem may be C190’s too wide a scope which exceeds labour or work scenarios and involves situations related to a commercial and civil relationships such as contractors, trainees, and any other third parties, as well as the impossibility of employers interfering in employees’ private lives when commuting or when at home.

A potential solution is to address different aspects of C190 and R206 according to the area which is to be regulated. Governments should make workers and corporate representatives aware of these issues, so that they can start being considered and included in collective bargaining agreements. Trade unions should also be proactive in promoting greater awareness of these provisions in the fight against violence and harassment in the workplace.

Notes

1. Art 1 of C190.
2. Art 1 of C190.
3. Art 2 of C190 – Scope.
4. Art 3 of C190 – Scope.
5. Art 4.2, Core Principles, C190.
6. Art 11, Guidance, Training and Awareness Raising, C190. R206, 17.
7. IBA Diversity and Equality Law Committee article ‘Violence based on gender and diversity and discrimination at work’ https://www.ibanet.org/violence-based-on-discrimination-at-work accessed 20 September 2022.
8. S 4, Law No 26,485.
9. Violencia laboral, derechos y trabajo decente ‘Violence in the workplace, rights and decent work’, Ministry of Labour, Employment and Social Security, https://www.argentina.gob.ar/trabajo/oavl/derechos accessed 20 September 2022.
10. GRAMO M L v Kopelco SA et al on dismissal, National Chamber of Appeal, Court Room II, 30 May 2022.
11. P P L c/ P M S A d C M et al on dismissal, National Chamber of Appeal, Court Room I, 28 November 2019.