Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - South Africa (Ratification: 1997)

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes that the Government has indicated in reply to the 2002 general observation that section 6(3) of the Employment Equity Act, of 1998, prohibits harassment on the basis of sex, amongst other grounds, as unfair discrimination. Section 54 provides that the Minister may issue codes of practice intended to provide guidance to employers to implement the Act, including on sexual harassment. In this context, the Committee notes with interest the Code of Good Practice on the Handling of Sexual Harassment Cases which prohibits both quid pro quo and hostile environment harassment. It notes that one of the guiding principles of the Code is to recognize the primacy of collective agreements regulating the handling of sexual harassment cases. The Committee asks the Government to provide copies of such collective agreements and information on the impact of the Code on the handling of sexual harassment in workplaces in the private and public sector, including judicial and administrative decisions and remedies provided.

2. Article 1(1)(b). Additional grounds of discrimination. The Committee notes with interest the Government’s confirmation that the additional grounds (pregnancy, marital status, sexual orientation, age, disability, culture, and language) set forth in the Constitution, the Employment Equity Act of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 are to be covered under the Convention.

3. Article 2. Promotion of national policy. The Committee notes that the Human Rights Commission (HRC) is specifically mandated to monitor the implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Equality Act), especially with regard to independent contractors and members of defence forces and the secret service, who are excluded from the application of the Employment Equity Act of 1998. Noting that regulations related to the Promotion of Equality Act were expected to be in place in August 2004, the Committee asks the Government to provide copies of these regulations and information on the promotional activities of the HRC in the field of labour and employment, in general, and more specifically with regard to the abovementioned workers. Furthermore, as no information is provided on this matter, the Government is asked to indicate the measures taken or envisaged to publicize its non-discrimination policy as called for in section 25 of the Equality Act of 2000.

4. Article 2. Please supply the information requested previously on the activities of the Equality Review Committee and the Commission for Employment Equity relevant to the application of the national non-discrimination and equality policy. Please also include details on the activities of the Commission for Employment Equity in assisting employers to draft employment equity plans and in disseminating information on the requirements of section 20 of the Employment Equity Act.

5. Article 3(a). Cooperation with relevant bodies. The Committee notes the information provided by the Government on the activities carried out by the National Economic Development and Labour Council (NEDLAC), including its contribution to the Equality Act and the development of the codes of practice on HIV/AIDS and disability. It asks the Government to continue to provide information on NEDLAC’s activities in implementing the national non-discrimination policy, including their practical impact on the promotion of equality of opportunity in employment and occupation.

6. Article 3(e). Access to vocational training. With reference to its previous comments, the Committee notes the progress made on the equity targets across all the objectives of the National Skills Development Strategy (NSDS) [85 per cent black people, 54 per cent women and 4 per cent people with disabilities]. It notes in particular that with respect to training for a level 1 qualification on the National Qualifications Framework (NQF), the target for black people was almost achieved (84 per cent) but was still low for women (35 per cent) and people with disabilities (0.4 per cent). The Committee also notes the progress made towards the set targets for these groups with regard to their participation in structural learning programmes and their participation in social development projects. It asks the Government to continue to provide information on the progress made regarding participation of black people, women and people with disabilities in training and education programmes with an indication of the number of persons from these groups who have actually found work after completing their training. Please also provide information on the number of unemployed black people, women and people with disabilities who received training by the labour centres and who obtained sustainable employment, as well as on the specific manner in which the SETAs work to improve the employment prospects of persons previously disadvantaged by unfair discrimination and to redress those disadvantages through training and education.

7. Article 4. Individuals suspected or engaged in activities prejudicial to the security of the State. The Committee reiterates its request to the Government to provide information concerning the practical application of this Article as well as specific information on the procedures establishing the right of appeal available to persons covered under Article 4 of the Convention.

8. Article 5. Special measures. The Committee would be grateful if the Government would supply information on the specific affirmative action measures taken to remedy the effects of past employment discrimination against black people, women and disabled persons, as well as information, including statistical data, on the progress achieved to date in this regard.

9. Part IV of the report form. Enforcement. With reference to its previous comments, the Committee notes the final outcome of Whitehead v. Woolwoths (Pty) (Case No. 6/99) at the Labour Appeal Court holding that there was no causal connection between the respondent’s pregnancy and the fact that she was not appointed. It asks the Government to continue to provide information on relevant court cases and to indicate the measures taken to protect women in practice from discrimination in employment and occupation on the basis of pregnancy. Please also supply information on the nature of the discrimination cases, including dismissal, handled by the labour courts indicating the grounds of discrimination alleged and the action taken, as this information has not been included in the report.

10. Part V of the report form. Practical application. With reference to its previous comments noting the various national bodies established in the area of gender equality, the Committee would also be grateful if the Government’s next report would include information on the activities of the Commission for Gender Equality, the Office on the Empowerment of Women and the Office on the Status of Women, and the gender desks, relevant to the application of the Convention. Please also provide information on the promotional, advocacy and enforcement activities of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities relevant to the application of the Convention.