Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations made by the Solidarity Trade Union (South Africa), dated 12 May 2017.

Articles 2 and 3 of the Convention. Practical measures. The Committee notes the measures taken by the Government to raise awareness among workers’ and employers’ organizations and the wider public of the Employment Equity Act and the Employment Equity Regulations 2014, as well as the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value. The Government also reports on capacity building of the members of the Commission for Conciliation, Mediation and Arbitration (CCMA) and of the labour inspectors and other officials of the Department of Labour in this regard. The Committee encourages the Government to continue to raise awareness and strengthen capacity regarding the employment equity legislation, among workers and employers and their organizations, as well as the enforcement authorities, and to provide information on the measures taken in this regard. Recalling its previous comments on income differentials between the designated group, the Committee also asks the Government to provide information on the measures adopted to address these differentials and to promote the use among employers of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value to implement pay/remuneration policies and practices free from unfair discrimination. The Government is also asked to provide information on concrete cases in which disparities have been addressed by employers.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. With reference to its previous comments regarding claims brought under the Employment Equity Act of 1998 (EEA), the Committee notes the information provided by the Government on the number of sexual harassment cases that have been handled by the CCMA. The Committee asks that the Government provide also information on the use made by employers of the Code of Good Practice on the Handling of Sexual Harassment Cases to develop policies on sexual harassment, as well as any other measures adopted to prevent and address sexual harassment in the workplace.

Article 1(1)(b). HIV status. The Committee reiterates its request to the Government to provide information 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. It also asks the Government to indicate whether any new such Strategic Plan has been adopted, and to provide a copy with its next report.

Article 2. National equality policy. Scope of application. The Committee recalls that the Convention protects all persons against discrimination in employment and occupation, and that members of the National Defence Force, National Intelligence Agency and South African Secret Service workers are excluded from the Employment Equity Act. The Government had indicated that the labour issues can be negotiated within the Military Bargaining Council (MBC). The Committee is bound to repeat its previous request to 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 opportunity to file complaints in the case of violations of their rights.

Equality between men and women. The Committee notes from the Commission for Employment Equity’s Annual Report 2016–17 that the representation of women in top management positions has hardly changed at just over 20 per cent, with the majority of them being White women. White men are overrepresented in all sectors of the economy at the top management level. The Committee notes that Black women comprise between 40 per cent to over 53 per cent of the unskilled positions in catering, accommodation and other trades, in finance and business services, in retail and motor trade, in community, social and personal services, and in wholesale trade, commercial agents and allied services. In contrast, White and Indian women represent less than 1 per cent of the unskilled workforce in these occupations. The Committee further notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations, expressed concern at the multiple forms of discrimination faced by Black and marginalized women and girls who are strongly affected by poverty and lack of access to basic services, in particular housing, education, health care and equal employment opportunities (CERD/C/ZAF/CO/4-8, 5 October 2016, paragraph 22). The Committee once again asks the Government to identify the specific vocational training and promotional measures adopted, including by the Commission on Gender Equality, to address gender occupational segregation and to increase the participation of women, in particular Black and marginalized women and girls, in the labour market, including in those occupations mainly carried out by men, and at the senior and top management levels. Recalling that the Women Empowerment and Gender Equality Bill was being examined by Parliament, the Committee once again asks the Government to provide information on any developments in this regard.

Article 3(e). Access to vocational training. In the absence of any further information on this matter, the Committee must reiterate its previous request to the Government to identify the measures taken 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. The Government is also asked to provide information on any other strategy adopted after 2013 and on the concrete measures taken by employers in the framework of the employment equity plans for the skills training of workers.

Indigenous peoples. The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations, expressed concern that indigenous peoples continue to suffer from extreme poverty and marginalization and face discrimination. The Committee further notes that the Traditional and Khoi-San Leadership Bill was introduced into Parliament in 2015 (CERD/C/ZAF/CO/4-8, paragraph 24). The Committee once again asks 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. The Government is also asked to provide information on any developments regarding the Traditional and Khoi-San Leadership Bill, and supply a copy of the Bill, once adopted.

Employment equity plans. The Committee recalls the measures previously taken to strengthen the enforcement mechanisms of the EEA, as amended, including section 42(1)(c) which provides that employers must demonstrate that reasonable steps have been taken to implement employment equity plans and train and appoint qualified people from designated groups. The Committee notes that the Government does not provide information regarding further measures taken in this regard but indicates that additional mechanisms to strengthen monitoring of employers’ compliance are being developed which will assist in implementing section 53 of the EEA relating to State Contracts and the Certificate of Compliance. The Government also reports that mechanisms are being explored to assess substantive compliance with the EEA in order to expedite the promotion of employment equity in the various workplaces. The Committee asks the Government to provide information on the practical application of sections 42(1)(c) and 53 of the EEA, as amended, and on the difficulties encountered and the specific steps taken. In this regard, the Government is asked to include 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, and any consequences thereof. The Committee also asks the Government to provide further information on the additional mechanisms to strengthen compliance with the EEA.

Article 5. Special measures. Affirmative action. The Committee recalls the obligation of employers, by virtue of section 21 of the EEA and section 10 of the Employment Equity Regulations, to submit information every year on the barriers to employment and the affirmative action measures adopted to overcome them. The Committee notes from the 17th Annual Report of the Employment Equity Commission that the number of employers submitting employment equity reports continues to increase. However, the Committee notes the low number of employees covered as compared to the national population. It also notes that according to the Employment Equity Commission a number of implementation challenges explain the slow progress made under the EEA, namely: the fact that employment equity is still not recognised by a number of employers as a business imperative and not yet integrated into business strategies and plans to promote equity; the absence of prescribed Employment Equity targets and benchmarks to be met by various employers in various sectors to ensure that there is equity in their various workplaces; and the inadequate monitoring of compliance by employees and trade unions in relation to the implementation of the agreed Employment Equity targets set by employers in the Employment Equity plans. The Committee asks the Government to continue to provide 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, and on any steps taken or proposed to address the implementation challenges of the EEA. The Government is also asked to provide specific information on the number and type of reasonable accommodation measures adopted in favour of workers with disabilities.

Enforcement. The Committee also notes the information provided on the cases addressed by the CCMA and the Labour Court regarding the application of the Employment Equity Act. The Committee asks the Government to provide information on efforts to strengthen mechanism for assessing compliance with the equality legislation, and the results achieved. It also requests the Government to continue to provide information on any discrimination cases addressed by the Labour Court and the Commission for Conciliation and Arbitration with respect to the principle of equality and non-discrimination in employment and occupation. The Government is also asked to provide information on any cases handled by the Commission for Employment Equity.