the International Labor Organization (ILO), (including Argentina) have finally approved the Convention and Recommendation on violence and harassment in the world of work, after two years of deliberations about the adoption of an instrument that protects victims of violence and harassment at work, including gender-based violence and harassment.
Among the most outstanding aspects that are included in the Convention are: The definition of “Violence and Harassment” in the world of work, understood as a set of unacceptable behaviors and practices, or threats of such behaviors and practices, whether they are manifest once or repeatedly, that have as their object, that cause or are likely to cause, physical, psychological, sexual or economic harm, and includes violence and harassment based on gender; and also contemplates the expression gender-based violence and harassment that are directed against people because of their sex or gender, or that disproportionately affect people of a given sex or gender, and includes sexual harassment.
The Convention leaves open the situation that, without prejudice to the definition provided, violence and harassment can be defined in national legislation as a single concept or as separate concepts.
Regarding the protected context:
It applies in the workplace, including in public and private spaces when they are a workplace;
In the places where the worker is paid, where he takes his rest, or where he uses sanitary or toilet facilities and in changing rooms;
In displacements, trips, events or social or training activities related to work;
Within the framework of communications that are related to work, including those made through information and communication technologies;
In the accommodation provided by the employer, and on the journeys between home and workplace.
In addition, the protection of third parties is included, a requirement of a significant number of countries, whose legislation does not offer any type of guarantee to victims of sexual harassment. This is the case, among many other sectors, of domestic service workers, a strongly feminized sector, where situations of sexual abuse are perpetrated by relatives of the people who contracted the services, not necessarily the employer.
One of the most controversial debates has revolved around the need, or not, to list the vulnerable groups, most likely to be victims. And within these, the most discussed has been the group made up of lesbians, gays, bisexuals, transsexuals, intersexuals and gender non-conformists. They are also obliged to have a sexual harassment protocol, companies whose equality plans, so collect it.
There are various forms of harassment, depending on the subject or subjects who commit it. The harasser can be a hierarchical superior who takes advantage of his position to exert psychological pressure against the victim or a worker who has a hierarchy equal to that of the victim. That is why I always say that workplace harassment is not vertical, but horizontal.
Regarding the protection of women workers, Law 26,485, when referring to the different types of violence against women, mentions labor violence, which includes systematic psychological harassment of a certain worker in order to achieve her exclusion from work ( article 6, subsection c). Harassment can imply a situation of discrimination and the courts have resorted to the application of Law 23,592 (discrimination law) to admit the reparation of moral damage caused by the harasser.
The compensation for non-pecuniary damage caused by the situation of harassment is not subsumed in compensation for dismissal, since the aforementioned damage does not derive from the termination of the employment contract, but has been caused during the development of the employment contract.
Members of the countries that make up the ILO should ensure that all workers and all employers, including those in sectors, occupations and forms of work that are most exposed to violence and harassment, fully enjoy freedom of association and of the effective recognition of the right to collective bargaining in accordance with the.
Convention on Freedom of Association and Protection of the Right to Organize, and the Convention on the Right to Organize and Collective Bargaining.
Lawyer Specialist in Labor Law. President of APREA
Source: Ambito
