Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Article 1(1)(a) of the Convention. Sexual harassment. In its previous comments, the Committee requested the Government to provide information on the Code of Good Practice on the Handling of Sexual Harassment Cases, the extent that it had been used by employers to develop their own policies and the impact of such policies on preventing and addressing sexual harassment. The Committee notes the Government’s indication that section 10 of the Employment Equity Act of 1998 (EEA), as amended, provides that an employee who is a victim of sexual harassment may refer a claim to the Commission for Conciliation, Mediation and Arbitration with a right of appeal to the Labour Court. The Committee notes, however, that no concrete information was provided in reply to its previous request. The Committee once again requests the Government to provide information on the application of the Code of Good Practice on the Handling of Sexual Harassment Cases; the manner in which it has been used by employers to develop their own policies on sexual harassment; any other measure adopted to prevent and address sexual harassment in the workplace; and any relevant judicial or administrative decisions regarding this issue, the remedies granted and the sanctions imposed.

Article 1(1)(b). HIV and AIDS status. The Committee notes the information provided by the Government concerning the measures adopted following the decision rendered by the Labour Court of Pretoria in May 2009 relating to unfair dismissal and discrimination on the grounds of HIV status. In this respect, the Committee notes that the South African National Defence Force (SANDF) HIV policy has been revised. Moreover, the Code of Good Practice on HIV and AIDS has been amended and a new National Strategic Plan on HIV for 2012–16 has been adopted. The Committee requests the Government to continue providing information on judicial and administrative decisions concerning discrimination in employment and occupation based on HIV status, as well as on the measures adopted in the framework of the National Strategic Plan on HIV for 2012–16 to prevent and address discrimination in employment and occupation.

Article 2. National equality policy. In its previous comments, the Committee requested the Government to provide information on the implementation of the Promotion of Equality and Prevention of Discrimination Act (PEPUDA) with respect to workers excluded from the EEA, namely members of the National Defence Force, National Intelligence Agency and South African Secret Service. It further requested the Government to provide information on the investigations conducted by the Human Rights Commission, and on any activities carried out by this body for the promotion of the principle of equality of opportunity and treatment in employment. The Committee notes the Government’s indication that, according to its complaints handling procedures, the Human Rights Commission does not have the mandate to deal with labour disputes generally. The Government further indicates that labour issues can be negotiated within the Military Bargaining Council (MBC) which negotiates to reach agreement of mutual interest and to solve disputes between the Ministry of Defence and the military trade unions admitted to the MBC. In case of persisting conflict, the parties may go to the Military Arbitration Board (MAB) for resolution. With respect to the complaints dealt with by the Human Rights Commission, the Government indicates that in 2014 it examined 485 complaints concerning labour relations. Recalling that the Convention protects all persons against discrimination in employment and occupation, the Committee requests the Government to indicate how it is ensured that members of the National Defence Force, National Intelligence Agency and South African Secret Service enjoy adequate protection against discrimination in employment and occupation, including the possibility to file complaints in case of violations of their rights.

Equality between men and women. The Committee previously requested the Government to provide information on the measures taken to raise awareness regarding gender discrimination in employment and occupation, address occupational segregation and increase the participation of women, particularly black women, in the labour market. The Committee notes that, according to the Government, the Department of Labour conducts employment equity roadshows on an annual basis aimed at educating employers about policy changes and the state of the labour market with respect to race, gender and disability and to counter stereotypes in terms of those grounds. The Commission on Gender Equality (CGE) has issued recommendations concerning women’s participation in national and local governments. The Government further refers to the adoption of the Women Empowerment and Gender Equality Bill, which is being examined by Parliament. The Bill will facilitate the empowerment of women and decent work in rural areas, mainstream gender in land reform programmes, improve the housing and living conditions of women in rural areas and their equal representation and meaningful participation in traditional councils. The Committee notes from the 15th annual report of the Commission for Employment Equity (15th CEE annual report) that women represent only 20.4 per cent of top management positions, the majority of whom are white women. Women are also more represented in the services sector (30.7 per cent). The representation of black, coloured and Indian women at top management level is very low. According to the report, African and coloured women continue to bear the brunt of low-skilled jobs and are hence confined to the lower occupational levels. The Committee requests the Government to provide information on any developments concerning the adoption of the Women Empowerment and Gender Equality Bill. The Committee also requests the Government to indicate the specific vocational training and promotional measures adopted, including by the Commission on Gender Equality, to address gender occupational segregation and increase the participation of women, in particular black and coloured women, in the labour market, including in those occupations mainly carried out by men, and at the senior and top management levels.

Equality in employment and occupation irrespective of race and colour. In its previous comments, the Committee requested the Government to provide information on income differentials between designated groups and on the measures taken to address occupational segregation based on race and colour and to promote equality in employment and occupation irrespective of race and colour. The Committee notes the Government’s indication that income differentials have been assessed through the Director-General review process. The Committee further notes that, during the Employment Equity and Transformation Indaba held in 2014, “equal pay for work of equal value” was addressed, as well as the need for employers to re-evaluate their remuneration policies to ensure that employees are paid the same. Moreover, according to the 15th CEE annual report, over 200 employers in the private sector and in government have been assessed since 2010. Employers have committed to undertake affirmative action measures related to equal pay, including conducting salary audits to identify income disparities and set aside budgets to address anomalies. The Government adds that employment equity roadshows, already initiated, have continued. The Committee also notes from the 15th CEE annual report that, according to the information collected from the 24,291 employment equity reports received in 2014, the pace of transforming workplaces, taking into account the representation of the population in the country, is moving very slowly. Relative progress is smaller at the higher occupational levels, where white persons continue to be over-represented (in 2014, 3.6 per cent African, 4.7 per cent coloured, 8.4 per cent Indian and 70 per cent white at the top management level, and 20.5 per cent African, 7.2 per cent coloured, 9.9 per cent Indian and 59.3 per cent white at the senior management level). Black people are starting to become better represented at the skilled technical level (in 2014, 58 per cent African, 11.4 per cent coloured, 58 per cent Indian and 22.7 per cent white). Africans are the most represented group in government and state-owned companies. The Committee requests the Government to continue providing information on the proactive measures taken for the promotion of equal opportunities and treatment in employment and occupation for all workers, irrespective of race and colour, and the impact of those measures in the inclusion of African and coloured workers in the labour market. The Committee also requests the Government to provide information on the measures adopted to address income differentials and expresses the hope that the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value, recently adopted, will serve to implement pay/remuneration policies and practices free from unfair discrimination. Please provide information on concrete cases in which disparities have been addressed by employers.

Employment equity plans. The Committee previously requested the Government to provide information on the measures taken to monitor employers’ compliance with the remedial action incorporated into the employment equity plans and on relevant cases of non-compliance brought before the Labour Court. The Committee notes that the EEA, as amended, has strengthened enforcement mechanisms to ensure successful prosecutions and facilitate the access of complainants to the procedures. This will bring more employers before the Labour Court. The Committee notes that, under section 42(1)(c) of the EEA, as amended, in order to evaluate whether the employer is implementing employment equity, the employer must demonstrate that reasonable steps have been taken to implement the employment equity plan and to train and appoint qualified people from designated groups. The Committee requests the Government to provide information on the practical application of section 42(1)(c) of the EEA, as amended, the difficulties encountered and the concrete measures taken, including specific examples of cases in which employers do not comply with the obligation to adopt an employment equity plan, or with the obligations and targets included in the employment equity plans that have been adopted.

Access to vocational training. The Committee previously requested the Government to provide information on the measures taken to address equality of opportunity through vocational training with regard to affected groups, such as black persons, women, persons with disabilities and youths. The Committee notes that the EEA, as amended, provides that the employer must take reasonable steps to train suitably qualified persons from the designated groups. The Committee notes that the Human Sciences Research Council (HSRC) has undertaken research to assess the progress made in skills development since the implementation of the National Skills Development Strategy II. The research, which focused on the unemployed, revealed that the target of training 450,000 unemployed persons was surpassed. Out of 251 persons interviewed, 75 per cent managed to find employment after receiving training. The Government further refers to the National Skills Development Strategy III 2011–13, which aimed to promote a skills development system that responds to the needs of the labour market with social equity that takes into account existing inequalities. Recalling that providing vocational guidance and taking active measures to promote access to education and training is essential to broaden the range of occupations from which men and women are able to choose, the Committee requests the Government to provide concrete information on the measures adopted in the framework of the National Skills Development Strategy III 2011–13 and their impact on the inclusion in the labour market of workers from the designated groups, namely black persons, women, workers with disabilities and young people. Please provide information on any other strategy adopted after 2013 and on the concrete measures adopted by employers in the framework of the employment equity plans for the skills training of workers.

Article 5. Special measures. The Committee previously requested the Government to provide information on the number and content of the affirmative action measures taken by employers to address discrimination against black people and women in employment and occupation. The Government indicates that the affirmative action measures have included leadership development programmes targeting mainly women. Noting that, in accordance with section 21 of the EEA and section 10 of the Employment Equity Regulations, employers have to submit information every year on the barriers to employment and the affirmative action measures adopted to overcome them, the Committee requests the Government to continue providing concrete information on the affirmative action measures adopted, their type and content and their impact in promoting equality of treatment and opportunities in employment and occupation for each of the groups, namely black people, women and persons with disabilities. The Committee also requests the Government to provide concrete information on the number and type of reasonable accommodation measures adopted in favour of workers with disabilities.

Indigenous peoples. The Committee previously requested the Government to provide information on any special measures aimed at addressing discrimination against indigenous peoples in employment and occupation, measures promoting educational opportunities, in particular for children from the Khomani San community, and any developments in the recognition of vulnerable indigenous communities. The Committee notes the Government’s indication that the Khomani San community has been receiving assistance from the South African San Institute, which has launched numerous projects to improve their economic situation. Measures have also been adopted, including through legislation, for the protection and development of vulnerable groups, such as the Khoi-San. The Committee requests the Government to provide information on the concrete measures adopted for the promotion of equality of opportunities and treatment in employment and occupation of indigenous peoples, including through education and vocational training. Please provide specific information on the measures adopted for the protection of vulnerable communities.