Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Equal Remuneration Convention, 1951 (No. 100) - South Sudan (Ratification: 2012)

The Committee notes that, since the receipt of the Government’s report in 2019, the country has witnessed political turmoil leading to intercommunal violence. It also notes the establishment on 22 February 2020 of the Revitalized Transitional Government of National Unity. While acknowledging the difficult situation prevailing in the country, the Committee encourages the Government to continue to step up its efforts to ensure the effective application of the Convention, and requests the Government to provide information on the following :

Article 1(a) of the Convention. Definition of remuneration. Legislation. The Committee takes notes of the adoption of the Labour Act No.64 on 24 October 2017. It notes that under Chapter I, wages/salaries are defined as: “remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable under an order or a written contract of service for work done or to be done, or for services rendered or to be rendered but excluding any contribution made or to be made by the employer in respect of his or her employee’s insurance, medical care, welfare, education, training, invalidity, retirement pension, post-service gratuity or severance allowances”. The Committee notes that the above definition only covers the ordinary, basic or minimum wage or salary, and does not include any “additional emoluments payable directly or indirectly, whether in cash or kind, by the employer”, in accordance with Article 1(a) of the Convention. The Committee recalls that the Convention sets out a very broad definition of “remuneration” in order to ensure that equality is not limited to the basic or ordinary wage, nor in any other way restricted according to semantic distinctions. Thus, remuneration under the Convention includes inter alia, wage differentials or increments based on seniority or marital status, cost-of-living allowances, housing or residential allowances and family allowances paid by the employer, and benefits in kind such as the allotment and laundering of working clothes. Further, the Committee wishes to point out that the addition of the words "directly or indirectly" in the definition of remuneration in the Convention was designed to include certain emoluments which are not payable directly by the employer to the worker concerned. Thus the Convention covers all components of remuneration - direct and indirect -which arise out of the employment relationship. Stressing the importance to be attached to the phrase "arising out of the worker's employment" in delimiting the scope of the Convention, the Committee asks the Government to take the necessary steps to ensure that the definition of remuneration in section 8 of the 2017 Labour Act covers all elements of remuneration, that is including any additional allowances, paid directly or indirectly, in cash or in kind, by the employer to worker.

Articles 1(b) and 2. Equal remuneration for work of equal value. Legislation. The Committee notes with interest that section 8 of the Labour Act of 2017 provides for the principle of equal remuneration for work of equal value and defines it as work requiring of workers a comparable amount of knowledge attested to by a qualification, or work experience, capacities derived from acquired experience, responsibilities and physical or intellectual effort (section 8(3)). It recalls that article 16(2) of the Transitional Constitution of South Sudan of 2011 (TCSS) gives women the right to “equal pay for equal work and other related benefits with men”, which is narrower than the principle set out in the Convention. In the absence of any information on this point, the Committee once again asks the Government to provide information on any progress achieved to ensure that article 16(2) fully takes into account the principle of equal remuneration for work of equal value set out in the Convention.

Public service. In its previous comments, the Committee asked the Government: (1) to seize the opportunity of any legislative review to amend section 19(b) of the Civil Service Act, which provides in general terms for equal rights for women and men in remuneration, without specifically referring to the principle of equal pay between men and women for work of equal value; and (2) to indicate the status of the Policy Framework for the Public Service of South Sudan 2007 (pre-dating the independence of South Sudan) which provision 4.2 (1) refers to the principle of “equal pay for equal work”, narrower than the principle of the Convention. In its report, the Government indicates that the Civil Service Act has not yet been revised. Moreover, the draft Regulations detailing further rights and obligations of civil servants, as indicated in section 20(2) of the Civil Service Act are still under review by the Ministry of Justice. It notes an absence of information regarding the Policy Framework for the Public Service of South Sudan 2007. The Committee asks the Government to provide information on any developments regarding the revision of the Civil Service Act, in particular as regard section 19 (b), and the adoption of the draft Regulations. In the absence of information regarding the status of the 2007 Policy Framework for the Public Service of South Sudan, the Committee reiterates its request to the Government to indicate whether this text is still in force.

Article 2(2). Rates of remuneration. Private sector. In its previous comments, the Committee asked the Government to provide information on the activities of the Labour Advisory Council (LAC) in charge of fixing, reviewing and adjusting periodically minimum wages, particularly with regard to the application of the principle of the Convention. The Committee notes that, pursuant to section 21(4) of the Labour Act, the LAC shall “advise the Office of the Labour Commissioner on periodically fixing, reviewing and adjusting minimum wages in accordance with section 50”. It also notes that pursuant to section 50(3) “Notwithstanding the principle of equal pay for work of equal value, the Council may recommend to the competent authority fixing different minimum wages/salaries for different occupations or for special categories of employees”. The Committee also notes the Government’s indication that all the bodies stipulated in the Labour Act, including the LAC, are yet to be established. Once established, these bodies will be guided by Regulations to ensure that there is no discrimination in setting wages. The Committee further notes that it is expected that the ILO will provide technical assistance to the Government for the period 2020-2021 through the funding of a RBSA (Regular Budget Supplementary Account (RBSA) proposal that intends to develop gender-responsive labour regulations through a new established Labor Advisory Council designed to improve industrial harmony and strengthen the protection of workers’ rights. The development of gender-responsive rules and regulation governing the functioning of the LAC is among the expected outputs. The Committee wishes to reiterate that the fixing of minimum wages can make an important contribution to the application of the principle of the Convention, as women predominate in low-wage employment. The Committee asks the Government to provide information on the progress made in setting up the Labour Advisory Council and on the implementation of the RBSA project. In the meantime, it requests the Government to indicate how it is ensured that the principle of equal remuneration between men and women for work of equal value is taken on board when setting different minimum wages for different occupations and for special categories of workers, particularly in sectors where women predominate.

Public sector. The Committee recalls that section 45(3) read together with section 21(1)(2) of Chapter VII of the Civil Service Act of 2011 provide that “the schedule of salary rates” is based on “the Civil Service Grade Classification Structure” composed of six categories of staff: (a) leadership; (b) super grade; (c) administrative and professional; (d) technical and para-professional; (e) skilled worker; and (f) unskilled worker. Examples of the title of posts included in each grade classification are set out in Schedule 1 of the Act. Section 45(1) provides for the issuance of a regulation indicating a “schedule of salary rates for the Grade Classification structure and pay grade”. In its previous comments, the Committee asked the Government to provide information: (1) on how the principle of equal remuneration for men and women for work of equal value is being applied in practice in the public service; (2) the criteria used in determining the posts and their corresponding salary scales in the Civil Service Grade Classification Structure and to ensure that these were established without discrimination based on sex ; and (3) on the distribution of men and women in each of the grades and salary scales in the civil service. The Government indicates that there is no discrimination based on sex in practice since the civil service salary structure is designed according to the grades, and the incumbent whether male or female receives the salary of a designated grade and position. The Committee, however, recalls that the fact that a system of remuneration is based on a classification of jobs that applies to all public sector employees, without distinction on the ground of gender, does not prevent indirect pay discrimination. Discrimination can be due to the manner in which the classification of jobs itself was established, with the tasks performed mainly by women often being undervalued in comparison to the tasks traditionally performed by men, or it can result from inequalities in the payment of certain wage supplements for work of equal value (allowances, benefits, etc.).The Committee notes the absence of information provided by the Government on the distribution of men and women in the different positions of the public sector, and their corresponding remuneration levels. In this regard, it draws the Government’s attention to the importance of conducting an evaluation of the overall gender pay gap in the public sector that may be due to occupational gender segregation of women into lower-paid positions. Recalling the Government’s obligation to ensure the full application of the principle of equal remuneration for men and women for work of equal value to its own employees, the Committee requests the Government: (i) to indicate how it is ensured that the criteria used to determine the classification of jobs and remuneration scales in the public sector are free from gender bias and that positions held predominantly by women are not undervalued in comparison with those undertaken by men; (ii) to take the necessary steps to collect and analyse statistical information on the distribution of men and women in the various occupations and positions in the public sector and their corresponding remuneration levels, to determine whether wage gaps exist, and to take the necessary steps to eliminate any wage gaps; and (iii) to provide information on any measures taken to improve the access of women to higher ranking and better paid positions in the public sector, and the results achieved.

Article 3. Objective job evaluation. Public sector. In its last comments, the Committee noted that: (1) under section 25(2)(a) read with section 31(1)(c) of the Civil Service Act 2011, the selection criteria in the job description relate to factors, such as “knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of [relevant] duties and responsibilities”; (2) the Government indicated that section 59 of the Civil Service Act refers to the “merit principle” for the purpose of “progression of civil servants, officials and employees within their grade or from one level to another”; and concluded (3) there may be potential for some confusion to exist between performance appraisal (which aims at evaluating the performance of an individual worker in carrying out his or her job) and objective job evaluation (which is to measure the relative value of jobs with varying content on the basis of the work to be performed). In this regard, the Committee wishes to stress that objective job evaluation is concerned with evaluating the job and not the individual worker (see General Survey on fundamental conventions, 2012, paragraph 697). Noting the absence of information on this point, the Committee requests the Government to provide information on: (i) whether in developing job descriptions, it undertakes a formal and objective analysis of the job’s content, in particular, whether numerical values are given to “the knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of duties”, with a view to determining entitlement to equal remuneration for men and women for work of equal value; and (ii) the methods adopted to determine rates of remuneration for skilled and unskilled worker categories which are not covered by section 25(5) of the Civil Service Act 2011. Please provide information on any measures taken to undertake objective job evaluation free from gender bias in the public service.

Private sector. The Committee recalls that section 8(3) of the Labour Act 2017 defines work of equal value as work requiring of workers a comparable amount of knowledge attested to by a qualification, or work experience, capacities derived from acquired experience, responsibilities and physical or intellectual effort. It wishes to highlight that, consequently, the concept of equal value requires some method of measuring and comparing the relative value of different jobs. While the Convention does not prescribe any specific method for such an examination, Article 3 presupposes the use of appropriate techniques for objective job evaluation, comparing factors such as skill, effort, responsibilities and working conditions. (see General Survey, 2012, paragraph 695). Noting once again the absence of information on this point, the Committee requests the Government to provide information on any measures taken or envisaged to encourage and promote the use of objective job evaluation methods in the private sector.

Article 4. Cooperation with employers’ and workers’ organizations. Recalling that workers’ and employers’ organizations play an important role with respect to giving effect to the provisions of the Convention, the Committee asks the Government to provide information on any awareness-raising activities carried out to promote the principle of the Convention, and to indicate whether any cooperation or joint activities have been undertaken together with the employers’ and workers’ organizations to promote the principle of the Convention. Further, considering that one of the most effective and practical methods of ensuring that the objectives of the Convention are achieved is the elimination of discrimination, in particular wage discrimination, in collective agreements, please provide samples of such agreements.

Statistics. The Committee notes that in response to its request for statistical data on the earnings of men and women in the public and the private sectors, by occupational sector and job category, and disaggregated by sex, the Government indicates that the Ministry will need technical support to set up a compiled statistical system in order to enable constructive comparisons of the earing of men and women. The Committee encourages the Government to avail itself of the technical assistance of the Office to be in a position to submit statistical information on salary levels and occupations, disaggregated by sex, in the public and the private sectors and to keep it informed of any development in this regard.

Application in practice. The Committee asks the Government: (i) to provide updated information on monitoring activities, especially those carried out by the competent authorities relating to the application of the Convention, including details of their findings, and on any other initiatives taken by them with a view to promoting the application of the Convention; and (ii) to supply copies of any relevant studies or surveys that have been undertaken to assess the application of the principle of equal remuneration for men and women for work of equal value, including any obstacles encountered.