Nova Convenção da OIT para combater violência e assédio no ambiente de trabalho: texto integral e resumo dos itens mais importantes

Rodrigo Trindade

Marcando seu centenário, a Conferência Geral da Organização Internacional do Trabalho – OIT aprovou nova convenção e recomendação complementar, com tema de combate à violência e assédio no ambiente de trabalho.

O texto chama à observação de que violência e assédio laboral são incompatíveis com o trabalho decente, ameaçam a igualdade de oportunidades e atentam contra os direitos humanos.

A convenção entrará em vigor 12 meses após dois Estados Membros ratificarem. Especialmente após o vexame internacional de integração do Brasil na “lista suja” dos violadores de convenções internacionais, não há qualquer sinal de que o país pretenda aderir ao novo convênio.                                                                                          

Destacamos os itens mais importantes:

1. Define violência e assédio laboral como “o conjunto de comportamentos e práticas inaceitáveis, ou de ameaças de tais comportamentos e práticas, seja aqueles que se manifestam única ou repetidamente, que tenham por objeto, causem ou sejam suscetíveis de causar dano físico, psicológico, sexual ou econômico, e inclui a violência e o assédio por razão de gênero (art. 1, item 1, “a”).
2. A proteção oferecida pela Convenção dirige-se a empregados e outros trabalhadores, dos setores público e privado (art. 2).
3. As situações de violência e assédio podem ocorrer não apenas no local e horário de trabalho, como em outros lugares e situações, incluindo o ambiente de comunicação (art. 3)
4. Os Estados-membro deverão proibir legalmente a violência e o assédio, estabelecendo mecanismos de aplicação, sanção, reparação e educação sobre o tema (art. 4, 6, 8, 10 e 11), incluindo medidas que obriguem empregadores a tomarem medidas apropriadas (art. 9).
5. Combate à violência e ao assédio laboral passa pelo reconhecimento de normas coletivas, abolição de trabalho forçado e infantil (art. 5 e 12).
6. Os Estados aderentes adotarão legislações e políticas garantidoras do direito à igualdade e a não discriminação (art. 6);
7. São necessárias garantias para que todo trabalhador possa afastar-se de situação de trabalho, sem sofrer represálias ou outras consequências indevidas, caso tenha motivos razoáveis para considerar que apresenta perigo grave e iminente para sua vida, saúde ou segurança (art. 10, “g”).

Eis o texto original, em inglês:

I. DEFINITIONS

Article 1

1. For the purposes of this Convention:

(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;

(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:

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

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

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

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

(e) in employer-provided accommodation; and

(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:

(a) prohibiting in law violence and harassment;

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

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

(d) establishing or strengthening enforcement and monitoring mechanisms;

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

(f) providing for sanctions;

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

(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:

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

(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

(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:

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

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

(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

(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:

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

(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:

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

(ii) dispute resolution mechanisms external to the workplace;

(iii) courts or tribunals;

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

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

(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;

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

(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;

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

(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

(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:

(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 nondiscrimination, and migration;

(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

(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 na 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:

(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;

(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 contente 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.