Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - South Africa (Ratification: 1932)

The Committee notes the information provided by the Government in reply to its previous comment.

Articles 1 and 2 of the Convention. Scope of minimum wage-fixing machinery. The Committee notes the detailed information provided by the Government concerning the 11 sectoral determinations adopted so far for low-paid and largely unorganized sectors. It notes, in particular, that the minimum wage rates provided for in most of the determinations are linked to consumer price indices, that special measures are taken in some sectors (for example, a higher hourly rate in the domestic worker sector for employing workers for less than 27 hours per week to prevent atypical form of employment, the move towards a single minimum wage in the civil engineering sector, the exclusion from the scope of the sectoral determination for the hospitality sector of areas covered by a bargaining council with a view to encouraging collective bargaining, etc.), and that investigations are under way in the welfare and unskilled labour sectors for a possible sectoral determination. The Committee also notes the Government’s indication that the social partners usually initiate the process of sectoral determination by requesting the Minister to launch an investigation following which a notice of intention to investigate is published and the Employment Conditions Commission (ECC) is consulted. The Committee would appreciate if the Government would continue to provide information with regard to any new sectoral determinations.

Article 3, paragraph 2(1) and (2). Participation of employers’ and workers’ representatives in the minimum wage fixing machinery. Further to its previous comment, the Committee notes the Government’s explanations on the manner in which consultations take place within the ECC. When reviewing or investigating sectoral determinations, relevant terms of reference are made public through a notice published in the government Gazette, to which all interested parties can submit written inputs. This gives rise to an extensive public hearing process, the preparation of a discussion document, and a full debate in the ECC eventually leading to the adoption of a majority and a minority report. The Committee would appreciate receiving detailed particulars on the functioning of the ECC, for instance, copies of any recent surveys or activity reports.

Article 3, paragraph 2(3). The binding force of minimum wage rates. The Committee notes the information provided by the Government on the instances where the Minister of Labour has exercised his discretionary power and cancelled 11 old wage determinations which in fact date back to the period preceding the advent of democratic rule in South Africa and contained provisions less beneficial than the BCEA. It also notes the Government’s statement that the Minister may not use these powers unilaterally, given that the Minister’s intention to cancel must be announced through a notice in the government Gazette, in order to allow public comments and a broad consultation process involving stakeholders.

Article 4. Enforcement measures. The Committee notes the information provided by the Government concerning the enforcement of the BCEA through labour inspection activities and communication campaigns. It would be grateful if the Government continued to supply concrete information on the enforcement of the relevant legislation, including, for instance, copies of awareness raising publications and other material used for media campaigns.

Article 5 and Part V of the report form. The Committee requests the Government to provide up to date information on the manner in which the Convention is applied in practice including, for example, statistical data on the number of workers covered by the 11 sectoral determinations currently in effect, labour inspection results showing the number of visits conducted and contraventions of minimum pay rates observed, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paras 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.