Towards a new ILO Convention and/or Recommendation on Violence against Men and Women in the World of Work: a Comparative Study between Brazil, Colombia and Uruguay

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Towards a new ILO Convention and/or Recommendation on Violence against

Men and Women in the World of Work: a Comparative Study between Brazil,

Colombia and Uruguay

University of Amsterdam

Student: Hingrid Advincula da Silva Chaves Email: hingrid.advinculadasilvachaves@student.uva.nl

Student number: 10974350 Supervisor: Professor Nuria Ramos

Master in International and European Labour Law 2 January 2017

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1 Abstract

All over the world, workers face physical, psychological and sexual violence that have a profound negative impact on their family, co-workers and employers, deeply affecting the world of work. The Governing Body of the ILO, at its 325th Session (November 2015), decided to place a standard-setting item on ‘Violence against women and men in the world of work’ as well as to assemble a tripartite meeting of experts in October 2016 to provide guidance to the Governing Body to the preparations for the first discussion of possible ILO legal instruments in the Conference of 2018. The ILO Background paper was then prepared to assist the discussion of the meeting of Experts that happened in 2016 on violence against women and men in the world of work. Both the Background paper and the conclusions of the meeting highlighted the need for a new ILO Convention and/or Recommendation that focuses on regulating the issue of violence in the workplace through a detailed analysis of national legislations.

Considering that a possible new ILO Convention and/or Recommendation may affect the legislation of several countries around the world, this thesis has aimed at focusing on the possible impact of an ILO legal instrument on three important countries in Latin America: Brazil, Colombia and Uruguay. This comparative study has sought to analyse as such how violence in the world of work has been regulated by these countries and whether and how a new Convention would bring changes to their national legislation. For this reason, comparison of national legal instruments in order to establish differences and similarities among each other, analysis of jurisprudence in face of gaps in the legislation and research of national policies and non-binding standards have been used in the study.

Through this comparative approach, it has been concluded that considering the disparities among the laws of these three relevant countries, there is a need for an instrument that clarifies terms, definitions and classification used for different forms of violence and harassment at work. Even though a new ILO Convention and/or Recommendation would not ensure compliance from Brazil, Colombia and Uruguay, the unique tripartite composition of the ILO would certainly empower workers, employers and governments, as well as representatives, to combat the issue together. Also, this influence could be increased if States could be strongly compelled to fulfil their obligations. For this purpose, their obligations under international law should be stated through both a Convention and a Recommendation. A new ILO Convention and Recommendation on Violence against Men and Women in the World of Work would certainly strengthen the international legal framework and monitoring systems in order to better protect workers.

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2

Lief is a Danish repairman that worked in a Norwegian factory. His work demanded special skills since it required him to keep the machine park running and he earned as such a high salary. His colleagues would often make jokes regarding his Danish accent as he spoke Norwegian, which disturbed his personal relations, making him become more and more isolated from his colleagues. After an incident in which he thumped a table because he became deeply irritated with the jokes, his colleagues nicknamed him as “The Mad Dane” and intensified and widened the “jokes”. His isolation became worse and with it he developed anxiety and psychosomatic problems, leading him to request for sick leaves. The measures taken by his employer consisted in assigning him to less skilled work, but the problem was not discussed. Lief considered such measure unfair and his psychosomatic disorders became more serious and the periods of sick leave longer. As a result, Lief lost his job and was unable to find another job because his medical history was indicated in his job applications. He was then exiled from the society.1

The real story of Lief is just one example of mobbing, which is considered as a type of violence in the world of work. All over the world, workers face physical, psychological and sexual violence that have a profound negative impact on their family, co-workers and employers, deeply affecting the world of work. For instance, European workers experience more psychological than physical violence.2_{In Rwanda, between 2007 and 2008, the most reported}

form of workplace violence was verbal abuse (27%), followed by bullying (16%), sexual harassment (7%) and, at last, physical violence (4%).3

There is not a single unified definition for violence in the world of work.4_{For example, in Guinea,}

workplace violence is defined as any de facto situation in which an employer or worker is persecuted, threatened or assaulted physically or psychologically when performing his/her work in the workplace.5_{In Mauritius, violence at work is prohibited and no person shall: “(a)}

harass, sexually or otherwise; (b) assault; (c) verbally abuse, swear at or insult; (d) express

1_{H. Leyman, Violence and victims (New York, Springer Publishing Company, 1990), 119 (Leyman) in}

Ducan Chappell and Vittorio Di Martino, Violence at work (ILO, Geneva, 3rd edition, 2006), 22 (Chappell & Di Martino).

2_{Eurofund, Physical and psychological violence at the workplace (Luxembourg, Publications Office of}

the European Union, 2013) 6 (Eurofund 2013).

3 M. Wlosko et al., ‘Violencia Laboral en trabajadores del sector servicios de la Ciudad de Buenos Aires:

Resultados de investigación finalizada’ (2014) in ILO, Conditions of Work and Equality Department,

Background paper for discussion at the Meeting of Experts on Violence against Women and Men in the World of Work (3–6 October 2016) (Geneva, ILO, 2016), [52] (ILO Background paper).

4_{ILO Background paper (n 3), [5].}

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5 the intention to cause harm to; (e) bully or use threatening behaviour towards; (f) use aggressive gesture indicating intimidation, contempt or disdain towards; (g) by words or act, hinder, a worker, in the course of or as a result of his work”.6_{Countries around the world}

provide distinct definitions of violence at work, which include different and sometimes overlapping behaviours. For this reason, “[it is] important to bear in mind that different forms of violence may interrelate and overlap and it is difficult to make clear-cut distinctions between one type of violence and another”.7

Considering how violence substantially affects workplaces, it is surprisingly that there is still no single international legal instrument regulating solely and comprehensively violence in the world of work. There are legal instruments in the international and regional levels that address some types of violence at work, but not in a thorough way. For example, the ILO Discrimination (Employment and Occupation) Convention No. 111 of 19588_{requires Member States to}

declare and pursue a national equality policy with a view to eliminating any discrimination in employment and occupation, including sex discrimination, which can be manifested through the form of sexual harassment. Under the same Convention, it is also possible to interpret its Article 1(1), which defines discrimination,9_{as including harassment in the form of discrimination}

on the grounds of race, colour, religion, political opinion, national extraction or social origin, or any additional grounds.

Another example is the ILO Domestic Workers Convention No. 189 of 2011,10_{a more recent}

Convention, which establishes under Article 5 that “[e]ach Member shall take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence”. The Domestic Workers Recommendation No. 201 of 201111_{further requires}

Member States to consider establishing mechanisms to protect domestic workers from abuse, harassment and violence, such as: (a) establishing accessible complaint mechanisms to report cases; (b) ensuring that all complaints are investigated and prosecuted; and (c) establishing programs for the relocation from the household and rehabilitation, including the provision of temporary accommodation and health care.

6_{Employment Rights Act 2008 of Mauritius, Section 54(1).} 7_{Chappell & Di Martino (n 1), 16.}

8_{ILO Discrimination (Employment and Occupation) Convention No. 111 (adopted 25 June 1958, entered}

into force 15 June 1960) 362 UNTS 31.

9_{Article 1(1) defines discrimination as: “any distinction, exclusion or preference made on the basis of}

race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”.

10_{ILO Convention Concerning Decent Work for Domestic Workers No. 189 (adopted 16 June 2011,}

entered into force 05 September 2013) 362 UNTS 31.

11_{ILO Recommendation concerning Decent Work for Domestic Workers Adoption No. 201 (adopted 16}

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6 In the regional level, some examples include, in the Americas, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women of the Organization of American States, also known as the Belém do Pará Convention,12 which

requires Member States to enact domestic laws and other measures to prevent, punish and eradicate violence, including physical, sexual and psychological violence, as well as sexual harassment in the workplace, but focusing only on women.

In Europe, the European Union Directive 89/391/EEC requires employers to ensure the health and safety of workers at work and includes protection against violence and bullying.13_{The EU}

equal treatment Directives 2000/43/EC14 and 2000/78/EC15_{prohibit harassment based on the}

grounds of racial or ethnic origin, religion, belief, disability, age or sexual orientation, as a form of discrimination in employment and occupation. Also the Directive 2006/54/EC16_{prohibits both}

harassment and sexual harassment as forms of discrimination. Harassment is defined as “unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment”; and sexual harassment as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occur[ring], with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment” (Article 2(1)).

Recognising such gap and the relevance of the issue, the Governing Body of the ILO, at its 325th Session (November 2015), decided “to place a standard-setting item on ‘Violence against women and men in the world of work’ on the agenda of the 107th Session (June 2018) of the Conference” and “to convene a tripartite meeting of experts to provide guidance on which basis the Governing Body will consider, at its 328th Session (November 2016), the preparations for the first discussion of possible instruments by the Conference”.17_{As a}

12_{OAS Inter-American Convention on the Prevention, Punishment and Eradication of Violence against}

Women ("Convention of Belem do Para”) (adopted 9 June 1994, entered into force 5 March 1995) OASTS A-61.

13_{European Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to}

encourage improvements in the safety and health of workers at work (1989) OJ L183.

14_{European Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal}

treatment between persons irrespective of racial or ethnic origin (2000) OJ L180.

15_{European Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for}

equal treatment in employment and occupation (2000) OJ L303.

16_{European Parliament and Council Directive 2006/54/EC of 5 July 2006 on the implementation of the}

principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (2006) OJ L204.

17_{ILO, Minutes of the 325th Session of the Governing Body of the International Labour Office,}

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7 preparation for the Conference in 2018, the ILO Background paper for discussion at the meeting of Experts on violence against women and men in the world of work, which occurred in October 2016, highlighted the need for ILO guidance on preventing and addressing violence against women and men in the world of work, whose “basic principles and measures to prevent and address violence could be stated in general terms in a Convention, which could be complemented by detailed provisions set out in a Recommendation”.18_{In the tripartite Meeting}

of Experts convened in October 2016, the Experts concurred on the relevance of (a) new instrument(s) (whether a new Convention and/or a Recommendation), while acknowledging that “[t]his could provide a common understanding of what violence and harassment encompasses and what is needed to address it”.19

Considering that a possible new ILO Convention or Recommendation may affect the legislation of several countries around the world, this thesis will focus on the possible impact of such legal instrument on three important countries in South America: Brazil, Colombia and Uruguay. These countries are developing countries, located in the same region, and are also Member States of the ILO. Additionally, they have the same legal tradition - civil law - and different approaches to the issue of violence in the world of work, which will make the comparison among their legislation more interesting and enriching, facilitating as such the analysis and comparison of existent standards within national legislation and the identification of possible gaps. While analysing and comparing the legislation of these countries, this thesis aims at addressing the main following question: To what extent would a new ILO Convention and/or Recommendation on Violence against Men and Women in the World of Work influence the national legislation of Brazil, Colombia and Uruguay?

In order to address this problem, the second section of this thesis will give an overview of the violence in the world of work by explaining the main forms of violence, why it occurs and which sectors are most affected, as well as its individual and collective impact. The third section will examine whether and how Brazil, Colombia and Uruguay regulate violence at work. The fourth section will focus on the comparison of their national laws, analysis of possible gaps and will also consider whether and how a new ILO Convention and/or Recommendation on violence and harassment against men and women in the world of work would influence their legislation. In the end, the fifth section will be the final conclusion in which the most important findings will be highlighted and an answer to the research question will be then provided.

19_{International Labour Office, Governing Body, Report of the Director-General, Fifth Supplementary}

Report: Outcome of the Meeting of Experts on Violence against women and Men in the World of Work,

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8 Section 2. Understanding violence in the world of work

Violence in the workplace consists in physical, psychological and sexual violence, which may sometimes overlap. Physical includes physical harm, attacks and injury. Main forms of psychological violence are harassment, mobbing and bullying. As for sexual violence, sexual harassment in both quid pro quo and hostile working environment is one of its main forms. Violence at work is also considered by many countries as a form of psychosocial risk due to its negative influence in the well-being of the worker. Workplace violence is mainly influenced by imbalanced power relations, such as between supervisors and subordinates. In some sectors, workers are at a higher risk of becoming victims of workplace violence, such as domestic workers, which are mostly women. Violence in the world of work brings severe consequences not only to the individual affected, but also to the company or enterprise, co-workers and community, and addressing thoroughly this issue is of utmost importance. In order to have an overview on the issue, this Section aims at addressing the main forms of violence in the world of work (physical, psychological and sexual), as well as: the correlation between violence in the workplace and psychosocial hazards (risks); power relations as one of the most relevant causes of workplace violence; specific sectors that are at a higher risk; and the impact and consequences of violence at work. It should be noted that, for the purpose of this thesis, violence in the workplace and its several forms will be addressed in similar terms to the ILO Background paper in order to facilitate the study of a possible impact of a new ILO legal instrument in the three relevant countries.

2.1. Main forms of violence in the workplace

2.1.1. Physical violence

Physical violence can be defined as “[t]he use of physical force against another person or group, that results in physical, sexual or psychological harm. It includes among others, beating, kicking, slapping, stabbing, shooting, pushing, biting and pinching”.20_{In addition to actual}

physical harm, it also includes any attempt at physical injury or attack on a person.21

20_{ILO et al., Framework guidelines for addressing workplace violence in the health sector: The training}

manual (Geneva, ILO, 2002) 3. See also ILO Background paper (n 3), 5 (Table 1).

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9 2.1.2. Psychological violence

Psychological violence, also known as non-physical violence, “can include diverse aggressive tactics, all of which have the potential to cause significant emotional injury among those victimised”.22_{It encompasses verbal and non-verbal abuse, harassment, bullying, mobbing,}

coercion and threats and includes “acts such as manipulating a person’s reputation, isolating the person, withholding information, assigning tasks that do not match capabilities or giving impossible goals and deadlines”.23

Harassment, as a form of psychological violence, can be defined broadly as: “[a]ny behaviour that demeans, humiliates, embarrasses, disturbs, insults or discomforts an individual, in whatever manner, by words, gestures, swearing or insults”; or “[a]ny conduct towards somebody based on their age, disability, HIV status, domestic circumstances, sex, sexual orientation, gender reassignment, ethnic background, colour, language, religion, political opinion, trade union affiliation or other opinion or belief, national or social origin, association with a minority, property, birth or other status that is unreciprocated or unwanted and which affects the dignity of women and men at work”.24

Bullying and mobbing, despite being commonly understood as synonyms for the same behaviour, are in fact distinct forms of psychological violence according to Chappell and Di Martino, who define bullying in the workplace as a “repeated offensive behaviour through vindictive, cruel, malicious or humiliating attempts to undermine individual or group of employees” that has to occur regularly and repeatedly and throughout a period of time.25_As

for mobbing, it “typically involves a group of workers ganging up on a target employee and subjecting that person to psychological harassment”.26_{In other words, bullying refers primarily}

to individual harassment and mobbing to collective harassment.27

22_{Chappell & Di Martino (n 1), 17.} 23_{ILO Background paper (n 3), [11].} 24_{Id., 5 (Table 1).}

25_{Chappell & Di Martino (n 1), 20-21.} 26_{Id., 21-22.}

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10 2.1.3. Sexual Violence

The World Health Organisation (WHO) defines sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work”.28_It

comprehends physical force, but also “it may involve psychological intimidation, blackmail or other threats – for instance, the threat of physical harm, of being dismissed from a job or of not obtaining a job that is sought”.29

One of the main forms of sexual violence in the workplace is sexual harassment, which can be defined as “[a]ny unwanted, unreciprocated, and unwelcome behaviour of a sexual nature that is offensive to the person involved, and which causes that person to be threatened, humiliated or embarrassed. It includes both quid pro quo and hostile environment harassment”.30_There

are two main types of sexual harassment are quid pro quo and hostile working environment, as follows: “Quid pro quo sexual harassment occurs when a job benefit – a pay rise, promotion or even continuing employment – depends on participating in some form of conduct of a sexual nature. Hostile working environment harassment covers conduct that creates an unwelcome, offensive working environment”.31_{The latter encompasses a great range of sexually harassing}

behaviour that does not comprise sexual blackmail, such as sex-based comments, offensive jokes of sexual nature, display of pornographic material, use of obscene language, etc.32_The

perpetrator of sexual harassment is frequently a supervisor or someone that has power over the recipient of sexual harassment (vertical sexual harassment), but it can also occur among co-workers (horizontal sexual harassment).

2.2. Psychosocial risks

Violence in the workplace can also be correlated with psychosocial hazards (risks), such as burnout and work-related stress.33_{‘Psychosocial hazards’, also known as ‘psychosocial risks’,}

are defined as “those aspects of the design and management of work and its social and

28_{Etienne G. Krug et al. (eds), World report on violence and health (Geneva, WHO, 2002) 149.} 29_Ibid.

30_{Valentina Forastieri (Ed.), SOLVE: Integrating health promotion into workplace OSH policies (2nd}

Edition, Geneva, ILO, 2012) 133 in ILO Background paper (n 3), 6.

32_{Deirdre McCann, Conditions of Work and Employment Series No. 2: Sexual harassment at work:}

National and international responses (Geneva, ILO, 2005) 19; Chappell & Di Martino (n 1), 18-19.

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11 organisational contexts which have the potential for causing psychological or physical harm”.34

It includes quantitative workload (the amount of work to be done) and qualitative workload (the difficulty of work), worker autonomy, rhythm of work, time allocation at work, remuneration, among others.35_{Burnout results mainly from: “high or unmanageable workload (quantitative}

and emotional demands), role ambiguity, organisational changes, low job satisfaction and personal accomplishment, unsuitable work-life balance, poor interpersonal relations and support at work, and workplace violence, including harassment and bullying”.36

Several countries around the world already address violence in the workplace, burnout and stress as forms of psychosocial risk, mostly in Occupational Health and Safety (OSH) legislation, due to their negative effects in the well-being of the worker.37_{For instance, in El}

Salvador, where the national legislation define psychosocial risks as including violence and sexual harassment in the workplace, establishing the duty of employers to adopt psychosocial risks prevention programmes.38_{The importance of putting in place preventive against}

occupational psychosocial hazards has been constantly highlighted by the ILO in its publications, as follows:

“[O]nly recently concern for the wellbeing of workers, and not merely for their capacity to be productive in organizations, has been bringing about changes in management practices and occupational safety and health. (…) Occupational health and workplace health promotion measures can contribute to improving the mental health and wellbeing of women and men at work and reducing the risk of mental health disorders. This implies an occupational health practice that involves protecting workers’ health through psychosocial risk assessment and management for the prevention of work-related stress and work-related mental diseases”.39

Consequently, due to the importance of addressing psychosocial hazards that include workplace violence in the OSH legislation, this thesis will analyse whether and how Brazil, Colombia and Uruguay protect workers against psychosocial risks and if the legislation recognises the duty of the employer to adopt preventive and protective measures against such issue.

34_{ILO, Workplace stress: A collective challenge (Turin, ILO, 2016) 3 (ILO 2016).} 35_Ibid.

36_{Id., 7 (emphasis added).}

37_{See for example ILO Background paper (n 3), [135 (Box 3)].} 38_{Id., [135 (Box 3)].}

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12 2.3. Power relations and violence at work

There are various causes of violence at work, but power relations seem to be one of the most relevant causes. For instance, the power imbalance has a great influence in cases of bullying and harassment and, as a result, those at a lower level of hierarchy more commonly report complaints against those practices.40_{Even though power imbalance more commonly results}

in violence committed by a supervisor against a subordinate, co-workers and subordinates can also act as perpetrators, as follows:

“[W]hen misused, power can be a source of violence in the workplace, as in the example of bullying, where a power imbalance is considered a ‘core dimension’. Those with more power at work greatly influence the behaviour of those with less power (…). A supervisor who bullies a worker is sending a signal that such behaviour is acceptable. This can open the floodgates for co-workers to settle differences among themselves through what is called ‘lateral’ violence.

There is also a power component to violence committed by workers against supervisors, such as ‘contrapower sexual harassment’, which occurs when those with less formal power harass those with more formal power, showing the influence of gender, race, and class on power dynamics (…).”41

Power relations are deeply influenced by gender inequalities. As a matter of fact, “workplace gender inequalities – including unfair divisions of labour and power and norms of male dominance – contribute to women’s economic and social disadvantage and men’s privilege”.42

The most common way of men asserting power is through sexual harassment and women are more likely to be victimised and male workers to tolerate and perpetuate such violent behaviours in the workplace.43_.

Surprisingly, women that work outside their homes are under a greater risk to being victims of violence whether in the workplace or in their own houses.44_{This can be explained by the fact}

that sometimes “men punish women not only for entering traditionally male workplaces but also for leaving traditionally female work, especially unpaid household and care work at

40_{Eurofund 2013 (n 2), 14.}

41_{ILO Background paper (n 3), [26] - [28] (emphasis added).}

42 _{Scott Holmes and Michael Flood, ‘Genders at Work: Exploring the Role of Workplace Equality in}

Preventing Men’s Violence Against Women’ (Sydney, White Ribbon, 2013) 4.

43_Ibid.

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13 home”.45_{In other words, men try to reassert their power and masculine identity through the}

use of violence against women in order to show control and domination, and not necessarily sexual desire.46_{But the ILO is not only concerned about violence against women in the}

workplace, but also the effects caused by domestic violence in the world of work. Despite the importance of understanding the spillover effects of domestic violence in the world of work, this issue will not be addressed in this thesis due to the specificity of the topic.

2.4. Specific sectors at risk: the higher vulnerability of domestic workers to violence

Certain sectors have a higher exposure to violence, such as the health care sector, public emergency services, education sector, transport services, agriculture and the rural economy, textiles, clothing, leather and footwear and domestic work, among others. Despite their higher vulnerability to violence due to reasons that include working alone, in contact with the public, with valuables and cash handling, with people in distress, in environments increasingly opened to violence, in conditions of special vulnerability, etc.47

Instead of addressing exhaustively all these sectors, this thesis will give special attention to one sector: domestic workers. These workers are mostly women which “are often excluded from the legal coverage of labour laws and social security regimes, as domestic work is not regarded as work”.48_{Many domestic workers are, as such, in the informal sector, lacking legal}

protection. The ILO Convention No. 189 already contains a provision protecting domestic workers against “all forms of abuse, harassment and violence”, as pointed out in the Introduction. Even though the Convention No. 189 is not the focus of this thesis, analysing its influence in the three relevant ILO Member States would only enrich the analysis of the impact of a possible new ILO legal instrument in the legislation of these countries. As such, the only specific sector that will be addressed in details in the following sections is domestic workers.

2.5. The impact of violence through an individual and collective perspective

Violence in the workplace brings severe consequences not only to the individual affected, but also to the company or enterprise, co-workers and community. It leads to personal pain and

45_Ibid. 46_Ibid.

47_{Chappell & Di Martino (n 1), 71-107.} 48_{ILO Background paper (n 3), [80].}

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14 suffering to the worker as well as humiliation, leading to “lack of motivation, loss of confidence, reduced self-esteem, depression, anger, anxiety and irritability”.49_{Other consequences include}

decreased morale, increased stress and fear, lower productivity, increased absenteeism, decreased worker trust, etc.50

At the company level, “violence causes immediate - and often long-term - disruption to interpersonal relationships, the organisation of work, productivity and the overall working environment”.51_{This implies in significant financial costs to the enterprise. For instance, a study}

estimated that in the United Kingdom, in 2007, “33.5 million days were lost by UK organisations due to bullying related absenteeism, almost 200,000 employees would have left organisations and the equivalent of 100 million days productivity were lost as a result of bullying”, resulting in an estimated cost of around £13.75 billion.52

The community is also highly affected by violence in the workplace, considering the following reasons:

“[H]ealth-care and long-term rehabilitation costs for the reintegration of the victims of violence at work, unemployment and retraining costs for those who lost their job because of such violent events, disability and invalidity costs for those whose working capacities are impaired by violence at work, and legal and criminal justice system expenses”.53

It is clear, as such, that the consequences of violence in the workplace surpass the individual and affect the company and the working environment as well as the community. Addressing comprehensively such issue and bringing awareness to its causes is, as such, of fundamental importance.

49_{Chappell & Di Martino (n 1), 136-137.} 50_Ibid.

51_Ibid.

52_{Sabir I. Giga et al., ’The Cost of Workplace Bullying, Research Commissioned by the Dignity at Work}

Partnership: Unite the Union and the Department for Business, Enterprise and Regulatory Reform’ (2008) in ILO Background paper (n 3), [69].

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15 Section 3. National Legislation of Brazil, Colombia and Uruguay on Violence in the Workplace

The historical, legal and cultural differences result in various perspectives of violence and harassment in the workplace. Some countries address it more comprehensively than others and each country approaches it differently. Nevertheless, there are several common grounds that need to be identified in order to proper analyse the impact of a new legal instrument on violence in the world of work. But in order to understand to what extent a new ILO legal instrument on violence against men and women in the world of work would influence the national legislation of Brazil, Colombia and Uruguay, it is important to first analyse whether and how the laws of these countries address violence in the workplace, which will further facilitate a gap analysis in following sections. For this reason, this Section will take into consideration the prevention, protection, prohibition, enforcement and monitoring of psychosocial risks, different forms of violence, psychological and sexual harassment, as well as whether and how these governments address violence against domestic workers.

3.2. Brazil

Violence in the workplace in Brazil is still a phenomenon that has not been thoroughly investigated by the Government and, as such, it is difficult to comprehend the actual impact of violence on workers. Only a few states have collected statistics, such as São Paulo, which through the Public Ministry of Labour has registered 566 complaints regarding moral harassment between January and June 2015, but only 6 law suits have been filed against alleged perpetrators.54

Regarding the legislation, the Brazilian laws do not address psychosocial risks. However, stress, PTSD, sleep disorders and burnout are considered as occupational diseases. The Codification of the Labour Laws (Labour Code) does not address any type of psychological violence, including moral harassment, nor sexual harassment. But it briefly addresses physical violence, even though it does not provide a definition for it, as one of the causes for constructive dismissal. Even though the labour legislation does not regulate sexual harassment in the

54_{Public Ministry of Labour of the State of São Paulo, MPT em São Paulo lança campanha contra}

assédio moral (2015)

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16 workplace, under Article 216-A of the Criminal Code it is criminalised. In relation to domestic workers, they are protected against certain forms of violence in the workplace.

3.2.1. Psychosocial risks

Brazil does not contain an OSH Act, and health and safety matters are mostly addressed in the Labour Code.55_{It establishes general duties of employers, such as that employers are}

under the duty to implement norms on health and safety and instruct employees on measures to be taken against occupational accidents or diseases (Article 157), but it does not explicitly state that employers are under the duty to protect and/or prevent the health and safety of workers, not even against psychosocial risks.

Even though there is no legislation addressing psychosocial risks and establishing the duty of employers adopt preventive measures and to protect workers against such hazards, workers have the right to a benefit since certain psychosocial risks are included as occupational diseases. Ordinance No. 1339 of 1999 establishes a list of occupational diseases which has a specific section on occupational mental disorders, including stress, PTSD, sleep disorders and burnout.56_{Law No. 6.367 of 1976 on social security for occupational accidents,}57_{under Article}

4, states that those who suffer from an occupational accident (which includes occupational diseases) have the right to a benefit (workmen’s compensation).58

3.2.2. Physical violence

According to Article 483, item “f”, of the Labour Code, if an employer or its representatives offends physically the employee, with the exception of cases of self-defence or defence of third parties, it is possible for the employee to terminate the employment contract – indirect termination, also known as constructive dismissal – for just cause, and receive as such compensation. The Labour Code, however, does not contain provisions addressing the duty of the employer to adopt preventive and protective measures against any form of physical violence. Moreover, protection against reprisals is not applicable to all employees, but to representatives of employers and employees in the company (Article 165).

55_{Codification of the Labour Laws of 1943 (Labour Code).}

56_{Ordinance No. 1339 of 1999 on the list of occupational diseases.} 57_{Law No. 6.367 of 1976 on social security for occupational accidents.}

58_{A study examining sickness absences due to accidents and work-related diseases in Brazil found that}

14% of annual health benefits were due to mental illness (9% for men and 16.7% for women). ILO 2016 (n 34), 8.

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17 3.2.3. Moral and sexual harassment under labour legislation

Labour Courts can hold employers liable for moral and sexual harassment based on constitutional provisions, even though they do not directly relate to violence in the workplace. Jurisprudence tends to distinguish (sexual) harassment between vertical harassment, which happens when the harassment occurs between employee and superior, and horizontal, when the harasser is a colleague of equal or lower level. Judges mainly argue that when an employer harasses the employee, he/she violates the employee’s constitutional right to the inviolability of privacy, private life, honour and image (Article 5(X)), giving rise to the right to compensation for property or moral damages resulting from their violation.59_{Labour Courts have}

consequently held that the violation of the constitutional right results in civil liability of the employers in accordance with the Brazilian Civil Code as it establishes that those who cause harm to others are obliged to repair it (Articles 186 and 927, Civil Code),60_{whether they}

constitute moral damages or material damages.

3.2.4. Sexual harassment under criminal legislation

Article 216-A of the Penal Code defines sexual harassment as the act “to impose upon someone with the purpose of obtaining favours of a sexual nature, abusing the relationship of authority or superiority inherent to the discharge of one’s position or function”. The penalty in case of sexual harassment is one to two years in prison. It should be noted that it is possible for an employee to criminally prosecute his employer and, at the same time, bring the case to Labour Courts to terminate the employment contract and claim moral and material damages. The Penal Code, however, contains no provisions on moral harassment.

3.2.5. Domestic workers

Domestic workers are one of the most vulnerable sectors to violence in the workplace, as discussed in previous sections. In Brazil, studies have reported that live-in domestic workers are at higher risk of sexual assault than the ones who resided in their own homes, especially younger and less educated workers.61_{The Complementary Law No. 150/2015 regulates}

59_{Federal Constitution of Brazil of 1988. See Superior Labour Court, AIRR - 445-89.2013.5.04.0013,} Date of Judgment: 02/12/2015, Minister Rapporteur: Mauricio Godinho Delgado, 3rd Chamber, Date of Publication: DEJT 11/12/2015.

60_{Law 10.406 of 2002 on the Civil Code of Brazil.}

61 _{E.R. DeSouza and E. Cerqueira, ‘From the Kitchen to the Bedroom: Frequency Rates and}

Consequences of Sexual Harassment Among Female Domestic Workers in Brazil’ (2009) 24 Journal of Interpersonal Violence in ILO Background paper (n 3), [80].

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18 Domestic Workers and offers some protection against violence.62_{Article 27 sets a list of}

possible causes for indirect termination of the contract by the employee (constructive dismissal), which include: the domestic worker is treated by the employer or his/her family with severity or degrading treatment; the domestic worker is under clear and reasonable danger; the employer or his/her family offends physically the domestic worker, with the exception of self-defence cases; the employer commits any act of domestic or family violence against women that live within the household, whether permanently or sporadically. In these cases, among others listed in the provisions, the domestic worker has the right to terminate the employment contract (constructive dismissal) for breach of the employer and, as such, receive severance payments (Article 27).

3.3. Colombia

Colombia also lacks on statistics that offer a thorough picture of violence at work and how it in practice affects workers. In 2014, the Ministry of Labour conducted a survey on how workers perceive sexual harassment in the workplace.63_{Even though the numbers do not help to}

portrait the actual dimension of the issue, they show that the majority of workers that have been interviewed have only identified direct actions, such as physical contact or electronic messages, as sexual harassment.64_{Indirect actions, such as unwanted intimate questions,}

have not been perceived as such for most of the workers interviewed, demonstrating thus a lack of instruction on the issue of violence.65

With regards to the legislation, Occupational Health and Safety legislation covers both mental and physical health. More precisely, the Colombian Resolution 2646 on psychosocial hazards and work-related stress defines and regulates psychosocial risks, stress, workload and harassment, including the duty to access risks and adopt preventive measures. Additionally, Colombia has a specific law regulating harassment, the Law No. 1.010/2006, which regulates both moral and sexual harassment in the workplace and includes a list with several types of harassment, also imposing on companies and institutions the duty of establishing preventive measures. Under the Labour Code, violence and ill-treatment are just causes for termination

62_{Complementary Law No. 150 of 2015.}

63_{Ministry of Labour of Colombia, Prevention of and care for sexual harassment: priority in the Strategic}

Plan of the Ministry of Labour (02 February 2016)

<http://www.mintrabajo.gov.co/febrero-2016/5792-prevencion-y-atencion-del-acoso-sexual-prioridad-en-plan-estrategico-de-ministerio-del-trabajo.html> (assessed on 07 September 2016) (Ministry of Labour of Colombia).

64_Ibid. 65_Ibid.

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19 of the contract by the employee (indirect termination/constructive dismissal). The Penal Code criminalises sexual harassment and defines it in the form of quid pro quo.

The Resolution No. 2.646 of 2008,66_{an OSH legislation, defines psychosocial risk factors and}

psychosocial factors, stress, workload, mental and emotional load and harassment. For instance, ‘psychosocial risk factors (hazards)’ means psychosocial conditions whose identification and assessment indicate negative effects on the health of workers or in the workplace (Article 3(d)). ‘Psychosocial factors (hazards)’ includes occupational aspects

outside of work or external to the organisation and to the individual conditions or intrinsic

characteristics of the worker, which in a dynamic interrelation, through perceptions and experiences, influence the health and performance of individuals (Article 5). ‘Harassment’ is defined in the same terms as in the Law 1.010 of 2006 on harassment, as will be addressed in the following subtopic.

Employers are under the duty to assess occupational psychosocial factors (hazards), which shall include identifying both the risks and the protective measures, in order to establish actions to promote health and prevent disease in the working population (Article 6). Once the psychosocial risk factors are identified in the workplace, a collection, analysis and monitoring from the perspective of occupational health shall be performed in order to establish the physical, mental and psychological burden associated with these factors as to identify whether there should be an intervention in the short, medium or long term and whether preventive programs should be established. This information shall always be updated by the employers and shall be kept at the disposal of the Ministry of Social Protection for surveillance and control (Article 12).

Further preventive measures include: a) developing a clear policy aimed at preventing workplace harassment that includes commitment by employers and workers; b) developing codes or manuals on coexistence, which identify types of acceptable behaviours in the company; c) conducting awareness raising activities on harassment and its consequences for

both managers and workers; d) conducting training on conflict resolution and development of

social skills for consultation and negotiation for supervisors and workers who are part of the committee on labour conciliation or coexistence in the enterprise, allowing them to mediate in cases of workplace harassment; e) conducting regular monitoring and surveillance on

66_{Resolution No. 2646 of 2008 which establishes rules and liabilities for the permanent identification,}

assessment, prevention, intervention and monitoring of exposure to psychosocial hazards and risks at work and for determining the origin of diseases caused by work-related stress.

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20 harassment, guaranteeing the confidentiality of the information; f) developing activities aimed at promoting social support and positive relations among workers at all hierarchical levels; g) establishing a complaint procedure on workplace harassment, ensuring confidentiality and respect for the worker (Article 14(1)).

The Resolution also contains sanctioning measures, which include: a) implementing actions on intervention and control of specific psychosocial risk factors, fostering a culture of non-violence; b) promoting the participation of workers in the definition of strategies on intervention against risk factors that generate violence in the workplace; c) facilitating the transfer of workers to another unit of the company when recommended by a doctor or by the Coexistence (Labour Conciliation) Committee; d) establishing a confidential, conciliatory and effective internal procedure against workplace harassment (Article 14(2)).

Psychosocial risks are also taken as occupational diseases, providing the worker with the right to a benefit. The Resolution No. 2.646 of 2008 on psychosocial risks establishes under Article 18 that for the diagnosis and classification of the origin of pathologies allegedly causes by occupational stress, the list of occupational diseases established by the Decree No. 1.832 of 1994 must be taken into account.67_{The list of occupational diseases include pathologies}

caused by work-related stress and some specific related disorders, such as states of anxiety and depression, non-organic sleep disorders, burnout, PTSD, among others (Decree No. 1.832 of 1994, Article 1(42)).68_{The Resolution also establishes, under Article 19, that a}

Protocol on the Identification of the Origin of Pathologies arising from Stress, shall be adopted as obligatory reference. The updated version of the Protocol from 2014 addresses violence in

the workplace as an indicator of occupational risk and domestic and sexual violence as a risk factor that causes depression.69

3.3.2. Violence in the workplace

The Labour Code70_{only addresses violence as a just cause for termination of the employment}

contract by the employee (constructive dismissal), considering that any act of violence, libel, ill-treatment or serious misconduct by the employer against the worker or members of his/her family, off-duty or not, or inferred in the workplace by the relatives, representatives or dependents of the employer with his/her consent or tolerance (Article 62(B)(2)). Another just cause for termination is all circumstances that the employee cannot foresee and that threatens

67_{Decree No. 1832 of 1994 on the list of occupational diseases.} 68_{See also ILO 2016 (n 34), 14.}

69_{Ministry of Labour of Colombia, Protocol on the Identification of the Origin of Pathologies arising from}

Stress, updated version – 2014 (2014), 19 and 44.

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21 his/her safety or health, and that the employer does not try to modify (Article 62(B)(4)). Violence or safety and health are, however, not defined.

3.3.3. Moral and sexual harassment under labour legislation

Under the Law No. 1.010 of 2006 on harassment in the workplace,71_{harassment in the}

workplace is defined as “any persistent demonstrable conduct on an employee or worker, by an employer, a chief or an immediate or mediate superior, a co-worker or a subordinate, designed to install fear, intimidation, terror and anguish, to cause a labour damage, to generate lack of motivation at work, or to induce the resignation of it” (Article 2). It can occur in several forms, such as in the form of abuse or ill-treatment, persecution, discrimination, inequality and vulnerability in the workplace (Article 2). Even though sexual harassment is not explicitly addressed by the law, abuse or ill-treatment in the workplace is defined as “any act of violence against the physical or moral integrity, physical or sexual freedom or property”. In accordance with the Ministry of Labour, sexual harassment is a form of harassment in the workplace.72

As for the duty to adopt preventive measures, it establishes that the regulations of companies and institutions must provide preventive mechanisms and establish an internal, confidential, conciliatory and effective procedure to overcome harassment in the workplace (Article 9(1)). Failure to take preventive and corrective measures against harassment by the employer or superiors will be understood as tolerance to such conducts (Article 9, second paragraph). The victim of harassment in the workplace may inform the case to the labour inspector, inspectors of the municipal police or the Ombudsman, through a written complaint, in order to prevent the harassment from occurring again in the workplace. The authority that receives the complaint must maintain the procedures under confidentiality, and may require the employer to adopt preventive measures and educational activities or group therapy to improve the working relationships within the company (Article 9(2)). The victim of harassment in the workplace may also request the official intervention of an institution of conciliation (Article 9(3)). Sanctions include: a) termination of employment for just cause or non-renewal of the employment contract when the harasser is a co-worker or subordinate; b) fine; c) presumption of termination of the employment contract without just cause, when the worker harassed has resigned, abandoned or terminated the contract due to the harassment (constructive dismissal); or d) payment of 50% of any medical expenses incurred by the victim as a result,

71_{Law No. 1010 of 2006 by which measures are adopted to prevent, correct and sanction harassment}

in the workplace and other forms of harassment in employment relationships.

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22 including occupational diseases, health disorders and other consequences arising from workplace harassment (Article 10). These sanctioning measures shall only be applied against the harasser by judges of labour courts (Article 12).

The Law also contains a provision on protection against reprisals. According to Article 11(1), the unilateral termination of the employment contract or dismissal of the victim or witness who has exercised preventive, corrective and punitive procedures will lack any effect within six months from the request or complaint, provided that the claim of harassment has been properly proven.

3.3.4. Sexual harassment under criminal legislation

The Penal Code73_{criminalises sexual harassment and defines it as “the one who in his benefit}

or to a third party and using his evident relationship of superiority, or authority or power, age, gender, job position, social, family or economic relationships, harass, pursue, press or besiege physically or verbally, for non-agreed sexual favours, to another person, without his/her acceptance”. It is punishable with imprisonment of one to three years (Article 210-A).

Colombia does not have a specific legislation regulating domestic workers. However, the Labour Code is applicable to the entire territory of the Republic for all residents, regardless of their nationality (Article 2) and thus also to domestic workers. The Law No. 1.010 of 2006 is also applicable to domestic workers. The Ministry of Labour provides a booklet for domestic workers to raise awareness on the rights and duties of domestic workers, explaining basic concepts with regards to working hours, salary, social security and also workplace harassment, among others. It briefly explains what constitutes workplace harassment based on the Law No. 1.010 of 2006.

3.4. Uruguay

In Uruguay, statistics have been officially collected by the Ministry of Labour and Social Security. It has reported that about 4.000 complaints regarding different matters are received per year, of which 300 correspond to psychological harassment and 80 to sexual harassment in the workplace.74_{From 2012 until 2015, more than 90 % of complaints of sexual harassment}

73_{Law No. 599 of 2000 on the Penal Code of Colombia.}

74_{Ministry of Labour and Social Security of Uruguay, MTSS recibe 500 denuncias anuales por represión}

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<http://www.mtss.gub.uy/web/mtss/visualizar-23 and more than 85% of allegations of psychological harassment are from the private sector.75

But statistics regarding other forms of workplace violence appear not to be collected systematically, hindering as such a comprehensive study of the phenomenon in Uruguay.

As for the legislation, the OSH legislation does not address psychosocial risks, but it establishes the general duty of employers to ensure the health and safety to workers, as well as to adopt general preventive measures to protect it. Sexual harassment is specifically regulated by the Law No. 18.561 on sexual harassment, which defines it as both quid pro quo and hostile working environment, and creates the duty on employers to take measures to prevent, discourage and punish conducts of sexual harassment. Domestic Workers are covered by both the OSH legislation and the Law on sexual harassment. Under the Criminal Code, sexual harassment is not criminalised.

Psychosocial risks are not addressed, but the general duty of employers to ensure health and safety to workers in all aspects related to employment is established (Decree No. 291, Article 5)76_{. The legislation also sets general preventive measures. The list of occupational diseases}

does not include psychological or physical diseases that could be related to violence in the workplace, but the legislation states that other diseases may be recognised (Decree No. 210/11, Annex). With regards to workmen’s compensation, the legislation establishes that the benefits will cover occupational accidents or diseases that occur due to work or because of it (Law No. 16.074).

3.4.2. Psychological harassment

Even though the Law does not address psychological harassment, there are cases in Uruguay in which the courts have condemned the harasser for harassment and/or mobbing and granted the victim a compensation, basing the grounds of the decision on provisions of the Law on Sexual Harassment, which will be addressed below.77

contenido?p_p_id=56_INSTANCE_i9Jx&p_p_lifecycle=0&p_p_col_id=column-1&p_p_col_count=1&groupId=11515&articleId=243653&version=1.2> accessed 15 April 2016.

75_ibid.

76_{Decree No. 291 of 2007 on safety and health of workers in the workplace.}

77_{See for example Labour Court of Appeals 2}nd_{Chamber, Final Judgment No. 146/2011, Ministry}

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24 3.4.3. Sexual harassment under the labour scope

There is a specific law that addresses sexual harassment, the Law 18.561 of 2009,78_which

defines it as both hostile working environment and quid pro quo. Sexual harassment is considered to be any conduct of a sexual nature, carried out by a person of the same or different sex, which is unwanted by the person to whom it is addressed and whose rejection results or threats to result in a detrimental employment or teaching situation, or creates an intimidating, hostile or humiliating working environment to the recipient (Article 2).

Sexual harassment can manifest itself by means of the following behaviours, among others: 1) Requirements for sexual favours involving: a) promise, implicit or explicit, of a preferential treatment; and b) threats, implicit or explicit, of harm regarding the current or future situation of employment or study of the recipient; as well as c) a conduct based on a requirement whose acceptance or rejection is, implicitly or explicit condition for employment or study.

2) Bodily approaches or other physical conduct of a sexual nature, unwanted and offensive for those who receive them.

3) Use of expressions (written or oral) or images of sexual nature, which have humiliating or offensive results to the recipients. A single serious incident may constitute sexual harassment (Article 3).

With regards to preventive measures, any employer or superior shall: a) take measures to prevent, discourage and punish conducts of sexual harassment; b) protect the privacy of complainants or victims, must keep in confidentiality the actions and the identity of the victim or of those who are called to testify in investigations; c) implement measures to protect the ‘psycho-physical’ integrity of the victim, and the content of the complaint, during investigations, and once these are concluded, take action in line with the decision rendered to the case; d) communicate and disseminate to supervisors, representatives, workers, customers and suppliers as well as the teaching and non-teaching staff and students the existence of a consistent corporate policy against sexual harassment (Article 6).

The legislation considers that sexual harassment can be committed directly by the employer or superior or those who represent them, both in the private and in public sectors. The employer or superior is also responsible for the acts of its subordinates or any other person related to the workplace or educational institution, as long as he/she has knowledge of its

78_{Law No. 18.561 of 2009 on Sexual Harassment: Norms for its prevention and sanction at work and in}

teaching relationships. It should be noted that this Law is also applicable to teaching relationships. However, since the educational sector is not the focus of this thesis, the specific provisions addressing this sector will not be addressed.

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25 occurrence and has not taken steps against it. If the perpetrator of sexual harassment is a subordinate worker, he/she will be punished according to the severity of the behaviour, and can be dismissed for flagrant misconduct (Article 4).

The affected worker may choose to file the complaint in its own company (or government agency if public sector) (internal procedure), or before the General Inspectorate of Labour and Social Security (administrative procedure) (Article 7). There is, as such, an internal or administrative procedures:

Trade unions can also receive complaints regarding sexual harassment and request an on-site inspection at the workplace to the General Inspectorate of Labour and Social Security. Union representatives may attend the proceedings, except the interrogation done before the Inspectorate; and promote before the Inspectorate measures they deem necessary to effectively ascertain the alleged facts, ensure the cessation and no reiteration of the acts, provided that the worker consents to such assistance (Article 10).

The victim of sexual harassment, notwithstanding the administrative complaint and the criminal proceedings that may be applicable, has the right to claim compensation for moral damages (Article 11). Administrative or judicial resolutions conclude that state that no evidence has been credited, in the proceedings, to the existence of sexual harassment do not affect the employment relationship (Article 15).

The law also contains provisions on protection against reprisals. Article 12 states that a harassed worker or witnesses that have testified shall not be subject to dismissal, or to disciplinary sanctions by the employer or superior. It is presumed, unless proved otherwise, that the dismissal or sanctions are retaliatory when they take place within one hundred eighty days after filing the complaint of harassment in administrative or judicial proceedings. The dismissal will be classified as abusive and will entitle a compensation.

The scope of the OSH legislation is applicable to domestic workers (Law No. 18.065, Article 14). The scope of the Law 18.561 of 2009 on Sexual harassment encompasses all workers of both private and public sectors (Article 1). It can be thus presumed that it is also applicable to domestic workers.

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26 Section 4. Comparative study and considerations on the importance of a new ILO Convention on Violence against Men and Women in the World of Work

As demonstrated in previous sections, violence and harassment still greatly impact the world of work. In Brazil, Colombia and Uruguay, national legislation and case law regulate workplace violence and harassment from similar but also different angles and means. This regulatory response include mandatory prevention and protective measures, also prohibitions of various forms of violence and harassment. But it also occurs that the regulatory response is absent with regards to certain forms of violence and/or harassment and/or lack a more comprehensive approach to the issue. This Section aims at comparing, at first, the similarities and differences among the national legislation of these relevant countries. It will then analyse the gaps in their legislation in order to consider whether there is a need for a new ILO Convention and/or Recommendation on Violence against Men and Women in the world of work.

4.1. Comparative analysis of the Brazilian, Colombian and Uruguayan legislation: addressing the gaps

Even though most laws do not explicitly mention violence as a possible risk to the health and safety of workers in the workplace, it is important that employer’s duty of care should include both physical and mental health and cover the threats to workers’ health and safety that result from violence in the workplace. In fact, “OSH systems (…) would be useful to address violence and harassment risks, raise awareness regarding prevention and complaints, and promote a culture of zero tolerance to violence and harassment”.79

Colombia has a strong OSH legislation which comprehensively defines psychosocial risks as psychosocial conditions whose identification and assessment indicate negative effects on the health of workers or in the workplace (Resolution 2646 of 2008, Article 3(d)). It also addresses the duty of the employers to assess occupational psychosocial factors (hazards), which include some forms of psychological violence (stress, workload and mental and emotional load) and harassment. Once these risks are identified, they should analyse whether an intervention should occur in the short, medium or long term and whether preventive programs are necessary (Resolution 2646 of 2008, Article 12). The Resolution 2646 of 2008 is not limited to establishing sanctioning measures (Article 14(2)) as most national legislation around the world,

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27 but it takes a step further and lists several preventive measures, under Article 14(1), to be adopted by the employer.

Brazil and Uruguay, however, have very limited OSH legislation that do not comprehensively address psychosocial risks and the importance of adopting preventive and protective measures to protect the health and safety (both mental and physical health) of workers. Neither of them contain provisions on psychosocial risks and, as a result, lack comprehensive definitions that also involve violence and harassment at work as possible threats to the health and safety of workers.

As for workmen’s compensation, both Colombia and Brazil include some psychosocial risks as occupational diseases, providing the worker with a benefit when necessary. But the Brazilian legislation is much more limited, considering that it only includes certain occupational mental disorders (stress, PTSD, sleep disorders and burnout) as occupational diseases, as opposed to the Colombian, which includes work-related stress, anxiety and depression, non-organic sleep disorders, burnout, PTSD, among others, and even considers that violence in the workplace is a risk factor to depression. Such compensation, however, is only established under very general terms under the Uruguayan law, and it does not explicitly address psychosocial risks.

Hence, the only legislation that establishes the general duty of employers to protect the health and safety of workers, including the protection against violence, and requires under occupational safety and health management systems risk assessments, duty to inform, internal complaints mechanisms and investigations regarding workplace risks, explicitly including violence, is the Colombian. Such comprehensive legislation is important because “[s]pecifically addressing psychosocial hazards for violence at work, linked to the environmental and organisational structure of the workplace, as well as specific circumstances and conditions of work that can increase exposure to violence, could have a considerable influence in preventing violence”.80

4.1.2. Violence and harassment

Protecting workers against violence and harassment in the world of work is of fundamental importance. For this reason, a comprehensive legislation that sets definitions, preventive and protective measures, as well as sanctions and remedies, among others, is relevant to eliminate

Towards a new ILO Convention and/or Recommendation on Violence against Men and Women in the World of Work: a Comparative Study between Brazil, Colombia and Uruguay