2.4. An inclusive, integrated and gender-responsive approach

Given the broad personal scope of protection – which includes individuals who may not be covered by labour law provisions – and with a view to ensuring effective protection against all forms of violence and harassment occurring “in the course of, linked with or arising out of work”, Convention No. 190 calls on ratifying countries to adopt, “in consultation with representative employers’ and workers’ organizations, an inclusive, integrated and gender-responsive approach” towards preventing and eliminating violence and harassment in the world of work (Art. 4(2)) (see figure 3):

  Inclusive refers to the broad personal scope of protection, as well as to the need to ensure consultations to better capture all different needs and realities.

  Gender-responsive calls for the need to tackling the root causes of gender-based violence and harassment, as well as for reducing their harmful effects.

  Integrated refers to the need to address the phenomenon in “labour and employment, occupational safety and health, equality and non-discrimination, and in criminal law, where appropriate” (Recommendation No. 206, Para. 2).

Over the past decades, criminal law has long been used as a principal bulwark against the commission of acts of violence and harassment, in particular physical and economic violence and harassment, including in the world of work (Chappell and Di Martino 2006; ILO 2016a; 2017a; Lippel 2016).

Yet based on the concept of violence and harassment in the world of work laid out in Convention No. 190 and Recommendation No. 206, criminal law alone may be insufficient. Criminal law criminalizes conduct considered to have surpassed a certain threshold of gravity, such as physical (including sexual) aggressions or “immoral acts” or threats. This, however, may not cover the wide range of unacceptable behaviours and practices that constitute violence and harassment in the world of work as per Convention No. 190. ¹⁴ In addition, criminal law focuses on sanctioning perpetrators rather than providing effective remedies to victims.

Prior to the adoption of Convention No. 190 and Recommendation No. 206, a variety of national instruments or branches of law have then been used as regulatory underpinnings enabling interventions to tackle violence and harassment at work, including constitutional law, equality and non-discrimination law, and OSH regulations. In calling for an overall regulatory framework, rather than imposing a single way forwards, Convention No. 190 and Recommendation No. 206 acknowledge that such frameworks may be shaped by taking into account national circumstances and legal systems (Convention No. 190, Art. 4(2); Recommendation No. 206, Para. 2). Not all situations will necessarily be covered by all laws and regulations, but it is important to see whether there are any gaps when the various laws and regulations are examined together.

The “integrated” approach also refers to the need to have measures on prevention and protection (Convention No. 190, Arts 7–9; Recommendation No. 206, Paras 6–13); enforcement and remedies (Convention No. 190, Art. 10; Recommendation No. 206, Paras 14–22); and guidance, training and awareness raising (Convention No. 190, Art. 11; Recommendation No. 206, Para. 23). Each of these components are essential. Prevention and managements of hazards and risks would not be successful if training and awareness raising are not undertaken. Likewise, inefficient and ineffective enforcement mechanisms will not help deter and prevent future occurrences of violence and harassment.

The core elements of this overall inclusive, integrated and gender-responsive approach are listed under Article 4, and then further developed in the operational part of the instrument. Article 4(3) also provides that, in adopting and implementing such an approach, ratifying countries should take into account the different and complementary roles and functions of governments and of employers and workers (and their respective organizations) according to the varying nature and extent of their responsibilities.

¹⁴ In this regard, although within the context of Convention No. 111, the ILO CEACR has stressed that criminal proceedings are insufficient in the case of sexual harassment at work, given “the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation”; see ILO 2012.